The original of tliis bool< is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924067576540 CORNELL UNIVERSITY LIBRARY 3 1924 067 576 540 REPORTS CASES ARGUED AND ADJUDGED DISTRICT COURT OF THE UNITED STATES, FROM MAY SESSIONS, 1836, TO MAT SESSIONS, 1846, INCLUSIVE. WILLIAM H. CRABBE. PHILADELPHIA: T. & J. W. JOHNSON, LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS, 197 CHESTNUT STREET. 1853. Entered, acc<5raing to Act of Congress, in the year 1853, BY T. 4 J. W. JOHNSON, In the Clerk's Office of the District Court, for the Eastern District of FennsylTania. o. 8HEEMAH, PBINTEB, 19 St. James Street. IS DEDICATED TO THE HONORABLE HENEY B. GILPIN, SOMETIME ATTORNET-flENERAL OP TDE UNITED STATES, AS A TRIBUTE TO HIS LEGAL LEARNING AND ABILITY, AND AS A TOKEN OP GRATITUDE EOR THE MANY KINDNESSES, PROFESSIONAL AND PERSONAL, CONFERRED ON HIS SINCERE FRIEND AND FORMER PUPIL, THE KEPOKTER. P E E F A C E. This volume takes up the decisions of the District Court of the United States, for the Eastern District of Pennsylvania, from the period at -which Gilpin's Reports terminate, and ends with the appointment of his Honor, Judge Kane, now on the bench. I have, after considerable hesitation, included eleven bank- ruptcy cases in the following pages. The case of the estate of Robert Morris, under the Bankrupt Law of 1800, was, per- haps, the least objectionable; the great amount of learning expended in the arguments and decisions in that case, and the knowledge that considerable landed interests, in this and another State, depended thereon, easily led to its introduction. The ten cases decided under the Law of 1841 were selected, as involving points of the most general interest, from a very large number of manuscript opinions by Judge Randall on the sub- ject, which I was not willing wholly to pass by. I feel bound to express my obligation and thanks for the kindness with which the notes of counsel have, in numerous instances, been placed at my disposal while preparing this volume for the press. There were many obstacles in the way of an intelligible report of cases so long since decided which these notes greatly assisted to remove, while, at the same time, they afforded the fullest and most reliable materials for an abstract of the arguments at the bar. W. H. C. 23d March, 1853. The District Judgeship of the United States for the Eastern District of Pennsylvania, became vacant on the thirteenth of January, 1842, by the death of the Honorable Joseph Hop- KINSON, LL.D. On the eighth of March, 1842, the President of the United States filled the vacancy by the appointment of the Honorable Akchibald Randall, at that time an Associate Justice of the Court of Common Pleas of the City and County of Philadel- phia. On the eighth of June, 1846, the' District Judgeship again became vacant, by the death of the Honorable Archibald Randall. On the sixteenth of June, 1846, the President of the United States appointed the Honorable John K. Kane, then Attorney- General of Pennsylvania, to the vacant Judgeship. LIST OF CASES ACCOKDING TO THEIE DATE. MAT SESSIONS, 1836. PAOE Anderson v. The Solon, . . . . .17 Humphreys' Case, ..... 19 Kalston V. The State Eights, . . . . .22 AUGUST SESSIONS, 1836. Bingham r. Wilkins, ..... 50 Hart V. The Otis, ...... 52 Brown v. The Independence, .... 54 NOVEMBEK SESSIONS, 1836. United States v. Evans, . . . . .60 Shakerly v. Pedrick, ..... 63 Greigg v. Keade, . . . . . .64 Vandever v. Tilghman, ..... 66 Morris's Estate, . . . . . .70 FEBRUARY SESSIONS, 1837. United States v. Ingersoll, .... 135 AUGUST SESSIONS, 1837. Freeman v. The Jane, ..... 178 Lang V. Holbrook, ..... 179 NOVEMBER SESSIONS, ISST*. Sarchet f. The Davis, . . ,. . .185 LIST OP CASES PEBEUAKY SESSIONS, 1838. PAGE Ulary v. The Washington, .... 204 Swaim v. The Pranklin, . . . . .210 MAY SESSIONS, 1838. Ferrara v. The Talent, . . . . . 216 Smith V. The Stewart, . . . . .218 Hoy V. The Stewart, ..... 218 NOVEMBEE SESSIONS, 1838. Harrison v. The Eclipse, , . . . . . 228 Jansen v. The Heinrich, .... 226 Gibbs V. The Texas, ...... 236 PEBEUAEY SESSIONS, 1839. Johnson v. The Coriolanus, .... 239 Stansbury's Case, ...... 243 MAY SESSIONS, 1839. United States ■;;. Stewart, .... 265 Fox V. The Lodemia, ..... 271 Cohen V. The Amanda, ..... 277 Scharlock v. The Globe, . . . . .278 Cornier v. Sawyer, ..... 281 AUGUST SESSIONS, 1839. Forbes v. Parsons, ...... 283 NOVEMBER SESSIONS, 1839. Eldrege v. Chacon, ..... 296 United States v. Linn, ..... 307 United States v. Hewes, ..... 307 ACCOKDING TO THEIR DATE. FEBEUARY SESSIONS, 1840. PAGE United States v. Bevan and Humphries, . . . 324 Knight V. The Attila, ..... 327 The Cloth Cases, 335 United States v. Twenty-five cases of cloths, &c., . . 356 AUGUST SESSIONS, 1840. Van Syckel v. The Ewing, . . . . .405 FEBRUARY SESSIONS, 1841. Benton v. Whitney, ..... 417 Coverdale v. The North America, .... 420 Whitney v. Eager, ..... 422 MAY SESSIONS, 1841. Boon V. The Hornet, . . . . .426 Holmes v. The Lodemia, .... 434 AUGUST SESSIONS, 1841. Cole V. The Atlantic, . . . . .440 Schelter v. York, ..... 449 Douglass V. The Washington, .... 452 NOVEMBER SESSIONS, 1841. String V. Hill, . ' . . . . . 454 MAY SESSIONS, 1842. Ex parte Breneman, . . . . . . 456 Ex parte Hoskins, ..... 466 Ex parte Potts and Garwood, .... 469 Tree v. The Indiana, ..... 479 Ex parte J. A. and H. W. Shouse, . . . .482 xii LIST OF CASES ACCOKDING TO THEIE DATE. AUGUST SESSIONS, 1842. PAGE Ex parte Rank, ...... 493 Ex parte Harwood, . . . . . .496 PEBKUARY SESSIONS, 1843. United States v. Clement and Newman, . . . 499 AUGUST SESSIONS, 1843. Ex parte Garwood, and Ex parte Potts, . . . 516 NOVEMBER SESSIONS, 1843 Sullivan v. Hieskill, ..... 525 FEBRUARY SESSIONS, 1844. Atkinson v. The Farmers' Bank, .... 529 MAY SESSIONS, 1844. Knox V. The Ninetta, ..... 534 Ex parte Preedley and Wood, .... 544 AUGUST SESSIONS, 1844. Atkinson v. Purdy, ..... 551 FEBRUARY SESSIONS, 1845. United States v. Forbes, ..... 558 MAY SESSIONS, 1845. United States v. Buchanan, .... 563 Edwards v. The Stockton, ..... 580 MAY SESSIONS, 1846. United States v. Clark, ..... 534 ALPHABETICAL TABLE OF CASES. [the name op the PLAlNTirP IS ALWAYS FOLLOWED BY «.] A. PAGE Amanda, Cohen v. The ...... 277 Anderson v. The Solon, ...... 17 Atkinson v. The Farmers' Bank, ..... 529 V. Purdy, ...... 551 Atlantic, Cole v. The ....... 440 Attila, Knight i). The 327 B. Beriton v. Whitney, . . . . . . .417 Bevan and Hunjphries, United States v. . . . . 324 Bingham v. Wilkins, ....... 50 Boon V. The Hornet, ...... 426 Breneman, Ex parte ....... 456 Brown v. The Independence, .... 54 ' Buchanan, United States «. . . . . . .563 Chacon, Eldrege v. ..... • 296 Clark, United States v. . . ... 584 Clement and Newman, United States v. . . . 499 Cloth Cases, The 335 Cohen v. The Amanda, ...... 277 Cole V. The Atlantic, ....... 440 Coriolanus, Johnson v. The ..... 239 Cornier t). Sawyer, . . . . . . .281 Coverdale v. The North America, .... 420 D. Davis, Sarchet i;. The . . . . . .185 Douglass V. The Washington, ..... 452 Eager, Whitney v. . . . . . . 422 Eclipse, Harrison v. The ..... 223 Edwards v. The Stockton, . . . . . .580 ALPHABETICAL TABLE OF CASES. Eldrege v. Chacon, Evans, United States v. Ewing, Van Syckel v. The PAflE 296 60 405 Farmers' Bank, Atkinson v. The Ferrara v. The Talent, Forbes v. Parsons, United States v. . Fox V. The Lodemia, Franklin, Swaim v. The . Freedley and Wood, Ex parte, Freeman v. The Jane, G. Garwood, Ex parte, and Ex parte Potts, Gibbs V. The Texas, Globe, Scharlock v. The Greigg v. Reade, . . . . H. Harrison v. The Eclipse, Hart V. The Otis, . Harwood, Ex parte Heinrich, Jansen v. The , Hewes, United States v. Hieskill, Sullivan v. Hill, String v. . Holbrook, Lang v. Holmes v. The Lodemia, Hornet, Boon v. The Hoskins, Ex parte Hoy V. The Stewart, Humphreys' Case, Independence, Brown v. The Indiana, Tree v. The . Ingersoll, United States v. Jane, Freeman v. The Jansen v. The Heinrich, . Johnson v. The Coriolanus, 529 216 283 558 271 210 544 178 516 236 278 64 223 52 496 226 307 525 454 179 434 426 466 218 19 54 479 135 178 226 239 ALPHABETICAL TABLE OF CASES. xv PAGE Knight V. The Attila, ...... 327 Knox V. The Ninetta, ...... 534 Lang V. Holbrook, ...... 179 Linn, United States v. ...... 307 Lodemia, Fox u. The . . . . . . 271 Holmes v. The ...... 434 M. Morris's Estate, . . . . . . . / 70 N. Ninetta, Knox v. The . . . . . , . .534 North America, Coverdale v. The .... 420 Otis, Hart v. The ....... 52 P. Parsons, Forbes v. ..... . 283 Pedrick, Shakerly v. . . . . . . .63 Potts and Garwood, Ex parte ..... 469 Ex parte, Ex parte Garwood and . . . .516 Purdy, Atkinson v. ..... . 551 R. Ralston v. The State Rights, ..... 22 Rank, Ex parte ....... 493 Reade, Greigg v. . . . . . . . 64 Sarchet v. The Davis, . . . . . .185 Sawyer, Cornier v. ..... 281 Scharlock v. The Globe, . . . . . .278 Schelter v. York, ....... 449 Shakerly v. Pedrick, ....... 63 Shouse, Ex parte J. A. and H. W. . . . . 482 Smith ■«. The Stewart, 218 Solon, Anderson v. The ...... 17 ALPHABETICAL TABLE OF CASES. Stansbury's Case, State Rights, Ralston v. The Stewart, Hoy v. The . Smith V. The United States v. Stockton, Edwards v. The String V. Hill, . Sullivan v. Hieskill, Swaim v. The Franklin, PAGE 243 22 218 218 265 580 454 525 210 Talent, Ferrara v. The . Texas, Gibbs v. The . Tilghman, Vandever v. . Tree v. The Indiana, . Twenty-five cases, &c.. United States v. U. Ulary v. The Washington, United States v. Bevan and Humphries, V. Buchanan, . V. Clark, . V, Clement and Newman, V. Evans, . V. Forbes, V. Hewes, . ■u. IngersoU, V. Linn, V. Stewart, V. Twenty-five cases, &c., 216 236 66 479 356 204 324 563 584 499 60 558 307 135 307 265 356 Vandever v. Tilghman, Van Syckel v. The Ewing, Washington, Douglass v. The Ulary v. The Whitney, Benton v. . . V. Eager, , Wilkins, Bingham v. . York, Schelter v. W. Y. 66 405 452 204 417 422 50 449 DISTRICT COURT OF THE UNITED STATES. MAY SESSIONS, 1836. THOMAS ANDERSON AND ATOLLEY ANDEKSON, MARINERS, T. THE SLOOP SOLON, JAMES HOLT, MASTER. 1. A libel ■wUl be sustained, though the vessel has made a second voyage since the cause of libel accrued, if, by her sudden departure, the prosecu- tion of the claim was previously prevented. 2. Where a vessel is seized by revenue officers, the mariners discharged, the vessel sold by her owner during seizure, and afterwards liberated, the lien of the mariners for wages is not destroyed. 3. It is not such embezzlement as will forfeit a mariner's wages, if he sells part of the cargo, by the direction of the mate, during the permanent ab- sence of the master, in order to procure necessary provisions for the vessel. This was a libel for wages. The libellants shipped on board the sloop Solon, at Phila- delphia, on the 21st September, 1835, to ply between that port and New York, at twelve dollars per month. In January, 1836, the sloop sailed from New York for Philadelphia, but was obliged to go into harbor, on the coast of New Jersey, till the navigation of the Delaware should be open : it being then obstructed by ice. While in harbor, the captain left the sloop, taking her papers with him. During his absence, the provisions having become exhausted, the mate directed one of 2 18 MAY SESSIONS, 1836. Anderson and another v. The Sloop Solon. the libellants to sell a portion of the cargo, to procure food. The sloop was subsequently seized, by the custom-house offi- cers, for want of the papers which were in the captain's pos- session, he still being absent. While under seizure, she was sold by her owner, and afterwards liberated. The new owner brought her to Philadelphia, when the libellants, who had been discharged at the time of seizure, issued a summons to her master, which could not be served, on account of her immedi- ately sailing for New York. On her return to Philadelphia, she was attached, in this suit, on the 14th April, 1836. The libellants claimed full wages, from the date of their shipping to their discharge at the time of seizure. On the 13th May, 1836, the case came on for hearing, be- fore Judge HoPKiNSON. It was argued by Geinnell for the libellants, and by Bulkley for the respondent. BuLKLET for respondent. The misfortunes of the vessel prevented the payment of wages; the seamen's lien was destroyed by the sale under seizure, as well as by her having made a second voyage before she was libelled; and the libellant, Thomas Anderson, had forfeited his wages by embezzlement of the cargo. Grinnbll, in reply. If there are no provisions on board, the seamen may leave the vessel, and it will not be desertion followed by forfeiture of wages. The sloop was seized for the master's misconduct, and the voyage broken up by no act of the mariners. The libellant, Thomas Anderson, was not liable as for embezzle- ment, because he received the goods sold from an agent of the owner — the mate ; and, also, because they were sold to pro- cure necessary provisions. The sale of the vessel did not de- stroy the libellant's lien for wages. Abbott Shipg. 181. Pro- cess was issued the first time she came to the port where the libellants shipped. See Blaine v. The Charles Carter 4 Cranch, 828. ' MAY SESSIONS, 1836. -19 Eichard Humphreys, an Insolyent Debtor. On the 20th May, 1836, Judge Hopkinson decreed in favor of the libellants for the full amount of wages claimed, and costs . THE CASE OF RICHARD HUMPHREYS, AN INSOLVENT DEBTOR. A party imprisoned on process of this Court petitioned for the benefit of the Act of 6th January, 1800 (1st Story's Laws, 715), and its various supple- ments : on investigation it appeared doubtful whether or not he had any property in a certain legacy, all his interest in which he had assigned for a small consideration ; the Court suggested to the party opposing the pe- tition — ^being the same on whose suit the petitioner was imprisoned — that an assignment should be executed giving to him all the petitioner's re- maining right to the legacy, which being refused by the opposing party, the Court ordered such an assignment to be executed to the Clerk of the Court, in trust for the creditors generally, and the petitioner to be dis- charged on taking the prescribed oath. This was a petition of a party imprisoned on process issued from this Court, praying for the benefit of the act of 6th January, 1800 (1st Story's Laws, 715), and its various supple- ments. It appeared that, before the commencement of the suit on which he was then imprisoned, and before the debt on which it was founded had accrued, the petitioner had been discharged under the insolvent laws of the State of Pennsylvania ; after- wards, and after the accruing of the debt sued on in this Court, but before suit begun, a legacy expectant on the death of a third party was devised to the petitioner ; he assigned all his interest in this legacy for a sum much less than its estimated value, and was afterwards sued and imprisoned by the party opposing the present petition. It having been suggested that the petitioner could not safely make the oath required by the Act of Congress, it being doubtful whether the assignment of the legacy would be held, in equity, to pass more than the value of the consideration on which it was made, the Court pro- 20 MAY SESSIONS, 1836. Eichard Humphreys, an Insolvent Debtor. posed to the opposing creditor that lie should take from the petitioner an assignment of any remaining interest he might have in the legacy, which the creditor refused to do. On the 20th May, 1836, Judge Hopkinson delivered the following opinion on the petition : The petitioner was discharged on the 8th of September, 1831, under the insolvent law of the State of Pennsylvania, and returned no property but a few debts, amounting in all to $45T 84. In February, 1832, R. Humphreys, the grandfather of the petitioner, died, leaving him one-eighth part of his property not particularly devised, which, the petitioner says, the execu- tors have informed him, will entitle him to about five or six thousand dollars. This legacy is given after the death of the widow of the testator, who is now seventy-seven years old. On the 1st April, 1833, the petitioner made a complete transfer to Robert M. Lee, for the sum of two thousand dollars, of all his right and interest in his grandfather's estate. This consideration of two thousand dollars is said and sworn by the petitioner and by Mr. Lee to be for boarding and moneys ad- vanced to the petitioner at various times, for which his bonds were given, and destroyed when the transfer was made. No property is shown or alleged to be held by the petitioner, other than that he may be entitled to under the will of his grand- father. The question then is, whether I am so satisfied that the peti- tioner has absolutely divested himself of all his right and in- terest in his grandfather's estate, by the transfer to Mr. Lee that I can permit or direct him to take the oath prescribed by the Act of Congress ? Until the death of his grandmother, the petitioner can claim nothing of this estate, and it is said that his right is contingent on his surviving his grandmother. Granting this to be so, what is the contingency that an old lady of seventy-seven years of age will survive a healthy young man of two or three and twenty ? MAY SESSIONS, 1836. 21 Richard Humphreys, an Insolvent Debtor. Suppose the petitioner shall survive his grandmother ; the question then occurs -whether Mr. Lee can, in equity, claim more by this assignment than his debt and interest ; and sup- posing that debt shall be established to be the sum mentioned of two thousand dollars, there will be a large surplus in his hands beyond his debt. This was a young, and, evidently, a thoughtless and imprudent young man ; a pupil with Mr. Lee at the time this assignment was made. Will not equity decree Mr. Lee to be a trustee for the petitioner for all beyond his debt and interest? I give no opinion on this question, either for or against the validity of this assignment, or for what amount it may be valid and effectual. It is enough for my purpose that I am not clear that this assignment has passed, irrevocably, to Mr. Lee, all the interest of the petitioner in his grandfather's estate. In this situation of the affair, what can I do to administer the law justly between these parties ? Is the petitioner to remain in prison until this question can be tried and decided, which may not be for several years ? Or can I administer the oath to him while I doubt its truth ; and discharge him when he may hereafter receive a property fully sufficient to pay his debts, or, at least, much more than the plaintiff 's claim, on which he is imprisoned ? Under these circumstances, I suggested to the parties that the petitioner should make an assignment, to the opposing creditor, of what- ever interest or estate he may have in the property devised to him by his grandfather. If this were done, then the petitioner might safely take the oath required by the law, and swear that he has no property, &c. ; because, if his assignment to Mr. Lee is good and valid, then his whole interest in that estate is gone from him ; but if any right or interest remains in him, notwith- standing that assignment, then it would be passed by the trans- fer I suggested. This proposition is refused by the opposing creditor, at whose suit the petitioner is now imprisoned. But the refusal ought 22 MAY SESSIONS, 1836. Ealston and others v. The State Rights. not to prevent me from doing justice in the case, if I can come to it in another way. If the assignment to Mr. Lee appeared to be fraudulent in fact, or in the intention of the petitioner, I should not hesitate to remand him to prison, and refuse him the benefit of the Act of Congress. But the willingness of the petitioner to execute the assignment suggested, is evidence of fair intention on his part, although the law may give him, or his creditors, the right to call Mr. Lee to account for all he receives beyond the pay- ment of his debt. If the petitioner had no creditors interested in the property, I might leave him to his own will, and his own remedy in this aifair. But others are concerned, and I know not how they could try their right, if they should wish to do so, but in the manner I have suggested — that is, under an assignment from the petitioner. It is only thus that any creditor can call Mr. Lee to account. Let the petitioner make an assignment of all his interest in his grandfather's estate, to the Clerk of the Court, in trust for the creditors generally, as it has been refused by the opposing creditor; and, on taking the oath prescribed by the Act of Congress, let the petitioner be discharged. MATHEW C. RALSTON, CHARLES A. DAVIS, ANB SIDNEY BROOKS, OWNERS OF THE STEAMBOAT LINN^US. THE STEAMBOAT STATE RIGHTS, JOSEPH H. ALLEN, MASTER. 1. If exemplary damages are claimed, in a case of collision, evidence maybe given of acts prior to the collision. 2. But the evidence must he confined to acts prior to and at the time of the collision. 3. The rule that where both parties to a, collision are in fault, the damage MAY SESSIONS, 1836. 23 Ralston and others v. The State Rights. must be shared, only applies to cases where both are in fault at the time and in the acts which produced the collision, and where the faults are not egregiously unequal. 4. In case of a wilful and malicious collision, damages may be given above the amount of actual injury. 5. Owners are liable for the wilful and malicious acts of a captain, done in the course and scope of his employment. 6. Otherwise of crimes committed by a captain, not within the course and scope of his employment. This was a libel for damages. It appeared that the Linnseus and the State Rights were running, in opposition, between Philadelphia, Burlington, Bris- tol, and Bordentown, on the river Delaware ; that on the sixth and thirtieth of May, and on the thirteenth of June, 1836, the two boats came into collision ; that the State Rights was much the stronger and more powerful boat ; that the Linnseus was considerably injured ; that the passengers on board of the Lin- nseus, on the 6th May, were much incensed by the conduct of the captain of the State Rights ; and that they published a statement, in the newspapers of Philadelphia, severely cen- suring him. The libel was filed on the 27th June, 1836, and claimed ten thousand dollars damages. On the 15th August, 1836, the case came on for a hearing before Judge Hopkinson, and was argued by Chester and J. C. BiDDLE for the libellants, and by Norris and J. R. Ingbrsoll, for the respondent. The respondent's counsel having proposed, at the trial, to examine witnesses as to facts occurring at other times than on the date of the occurrences complained of, the counsel for the libellants objected. Judge Hopkinson said : The libellants claim, not only compensatory, but, exemplary damages ; there can be no set-off to the first, but the second is materially affected by it. This Court is not only to try the 24 MAY SESSIONS, 1836. Ralston and others v. The State Eights. issue of fact — that is, whether the injury complained of was done— but to assess the damages : that is, to perform the part of the jury, and also of the court. In basing our sentence we always hear attendant circumstances. The evidence is ad- mitted, but must be confined to acts prior to the injuries com- plained of. The evidence having been closed, Chester, for the libellants, contended, after arguing the questions of fact, that the damages should be measured, not only by the actual injury sustained, but by the loss of time, custom, and profit, suffered on account of the collision ; and that the owners were liable for the acts of their agent, the captain. NoRKis, for the respondent. The owners are not liable for the wilful torts of their agent. Both parties being in fault, the damage should be shared. Jacobsen's Sea Laws, 328.' Ingersoll, on the same side. In case of collision, there can be no recovery beyond the actual damage sustained. Jacobsen's Sea Laws, 328. Exem- plary damages are out of the question. Owners are not re- sponsible for a wilful wrong or trespass done by their agent or captain, out of the course and scope of his employment. Bussy v. Donaldson, 4 Ball. R. 206 ; Jones v. Hart, 2 Salkeld, 441 ; The Shepherdess, 5 Robinson, 234 ; Bowcher v. Noidstrom 1 Taunt. 568 ; Dras v. The Privateer Revenge, 3 "W. C. C. R, 262 ; M'Manusv. Cricket, 1 East, 106. The acts complained of were not within the course and scope of the captain's em- ployment ; and the property of his employers should not be made liable for his wrongful acts. The libellants aver this to be a case of wilful and malicious wrong, and not one of negli- gence or unskilfulness, for which the owners would, undoubt- edly, be liable. MAY SESSIONS, 1836. 25 Ralston and others v. The State Rights. BiDDLB for libellants. This case is fully within the jurisdiction of the court. Serg. Const. Law, 207 ; 3 Story Const. 533 and note ; 3 Wheaton's R. 558, The Amiable Nancy ; 1 Wheaton's R. 335, Martin v. Hunter's lessee. The owners assented to and ratified the acts of their agent, by continuing him in their employ, after the publication con- cerning the first collision. There is no hardship in making the owners liable for the captain's misconduct ; for, if he have exceeded his authority, he will be liable to them in damages. All the counsel argued the questions of fact very fully. On the 5th September, 1836, Judge Hopkinson delivered the following opinion : The Steamboat " State Rights" was built by the " Camden and Amboy Railroad Company," for the purpose of passing, with their passengers and freight, over the Delaware, between Philadelphia and Camden, when the river was obstructed with ice. To enable her to perform this service, she was armed with an " ice-breaker," and provided with an engine of extra- ordinary power for the size of the boat. When the navigation of the river was open, in the last spring, this boat was laid aside, and the Company commenced running up the Delaware, with their three large passenger and freight boats, at various hours of the day. On the 2d of May, the Linnaeus, a small steamboat, built for the transportation of passengers and freight, commenced run- ning up the river as far as Bordentown, stopping at the usual intermediate places, and starting, at both ends of her route, at an hour different from any of the boats of the Company. The price of a passage to Bordentown, Bristol, or Burlington, on board of the Company's boats was fifty cents ; the charge of the Linnaeus to the same points, was twenty-five cents. Two or three days after the Linnaeus began to run, the Com- pany drew the " State Rights" from her retirement, and put 26 MAY SESSIONS, 1836. Ealston and. others v. The State Bights. her on the same route, and at the same hours of starting, with the Linnaeus, carrying passengers to the places mentioned for twelve and a half cents. It cannot be believed that this was done with any view to profit from this boat ; on the contrary, the expense of running her could not be defrayed by such a fare. She must have been run at a considerable daily loss. It is, indeed, freely admitted by the counsel of the respondent, that the State Rights was set afloat for a competition with the Linnaeus, but that the competition was fair and lawful ; and so it was, provided that it was fairly and lawfully conducted. This Company, for the very purpose of putting down the com- petition, if it could be so called, which the Linnaeus had entered into with their large and superior boats, so excellent in their accommodations, speed, and general management, had an un- doubted legal right to run the State Rights, or any other boat, at twelve cents, or at one cent, a passenger. Yet I cannot but believe that it would be more worthy of their high cha- racter and overwhelming strength to imitate the generosity of the eagle who " suffers little birds to sing," rather than to pounce upon every unfortunate sparrow that might cross their path. Their right, however, was unquestionable, and it was for them to judge of the expediency of using it. It is equally certain that they were bound to exercise it without infringing upon the rights of others. Their power and influence might be exerted to draw the public patronage to themselves, but not, by violence and wrong, to drive ofi" a competitor, however feeble. In such an attempt they would raise up another ad- versary, the law, as much too strong for them, as they might be for the humblest rival. The question, then, in this case is, whether the owners of the State Rights, or their agents, in their competition with the Linnaeus, have kept themselves within their legal rights, or have resorted to their superior strength to crush a rival by violence and wrong. This is the charge made by the libellants, and which they must prove and maintain by their evidence. MAY SESSIONS, 1836. 27 Ralston and others «. The State Rights. It is my duty to examine and decide whether they have done so or no. The libel charges that the Linnaeus was engaged in trading on the high seas, at, from, between, and to the ports of Phila- delphia, Burlington, Bristol, and Bordentown, on the river Delaware, and carrying passengers and freight to and from the said ports. That on the 6th day of May last, while peace- ably engaged on the high seas, between Bordentown and Phila- delphia, about two and a half or three miles from Bordentown, she was run into by the State Rights — a steamboat of great strength and speed, armed with an ice-breaker — with great force and violence, by means whereof the Linnaeus was struck just abaft the wheel on the starboard side, and received great damage. That the captain of the Linnaeus, having stopped his engine, stated to the captain of the State Rights, that he had respectable ladies on board, that the river was open to him, and requested him to proceed on his way ; that he waited some time for the State Rights to proceed, but, finding she would not, he again got under way, and had proceeded but a short distance, when the State Rights came down upon him with her whole force, and again struck the Linnaeus, running square into her stern. The libel complains of another attack on the same day, while the boats were at Burlington. Another is complained of on the 30th of May, between Bordentown and Bristol; and another on the 13th of June, the circumstances of which are particularly set forth. The answer of the respondent denies " that on either of the times mentioned in the libel, or any of them, the steamboat State Rights did run into or against the said boat Linnaeus, as is stated in the said libel." The respondent also " avers that during the periods of time aforesaid, and while the said boat State Rights was employed as aforesaid, the said boat State Rights was run into and against by the said boat Linnaeus several times, and, as respondent believes, intentionally and with a view of disabling her, and to prevent her continuing to navigate the said river, as by law she was entitled to do." 28 MAY SESSIONS, 1836. Balston and others v. The State Eights. The replication denies that the Linnaeus, at the times men- tioned, or at any time, ran into or against the State Rights, with a view of disabling her, &c. The matters of fact put in issue by these pleadings must be determined by the evidence given to the Court concerning them, and the questions of law raised at the bar will then be considered. It will conduce to a better understanding of the case to consider separately the several aggressions complained of, in their order, and inquire whether, on the whole testimony, the libellants have maintained their plea and complaint for all or any of the alleged trespasses. We begin with the transactions of the sixth of May, which was but two or three days after the State Rights commenced running. The recurrence of the evidence of so many witnesses to the same transactions, and their repetitions of the same cir- cumstances, cannot but be tedious ; it is only by examining all the testimony, however, that a satisfactory result can be ob- tained. The first witness, on the part of the libellants, is William Reeves, the captain of the Linnaeus. Notwithstanding the relation in which he stands to the libellants, his testimony was given with a moderation and propriety that would acquit him of any intended misrepresentation or exaggeration of the occur- rences of which he speaks, even if it should be found that he has fallen into some error in point of time. No Imputation, however, has been made upon him in this respect. He says that his boat began to run on the second of May, and the State Rights. two days after; that on the sixth, when coming down the river, just below Betty's Point, about two miles and a half from Bordentown, the State Rights ran into him, striking him, in the first place, just abaft the wheel, and breaking his guard; he stopped his engine, and told Captain Allen to go on, that the river was open to him, and that there were ladies on board the Linnaeus. Captain Allen also stopped his engine for two minutes, and was fioating down the river when the witness told him to go on, which he would not do. The witness then MAY SESSIONS, 1836. 29 Ealston and others v. The State Eights. Started, and got about an hundred yards ahead of him, when the other boat got under way, came after the Linnaeus, and struck her full in the stern under the counter. The witness stopped again. Captain Allen stopped also, and laid still, until the Linnaeus started, then came up in the same way, and broke and carried away part of the forward guard of the Lin- naeus. The witness says his passengers were so much enraged that they jumped on the rail, and were about to go on board the State Eights, with the intention of tying Captain Allen, and bringing him to town. The witness prevented this. The Linnaeus proceeded down the river. The State Rights arrived at Burlington first, and stayed there lon^ enough to take her passengers in. She then left the wharf with intention of going down the river. The Linnaeus went to the wharf, when the State Rights came back and ran into the Linnaeus at the wharf, split her stem and broke her cutwater. The witness says that he left Bordentown first ; that there was room, at the time of the first collision, for half a dozen boats to pass him without coming into contact. The State Rights is much the faster boat. She was employed during the previous winter in break- ing the ice between Camden and Philadelphia, and was armed with an ice-breaker for that purpose. She is a rough, strong boat, of great power. Two days after these occurrences, the Linnaeus broke her air-pump beam, and was stopped four days. The State Rights stopped during the same time. This is the account given by Captain Reeves, of what took place on the 6th of May ; he added, on his cross-examination, that the Lin- naeus was laid up twice between the 6th of May and the 13th of June, and that then the State Rights lay at Camden, and had her ice-breaker taken off. Mendert Wilson was a passenger on board the Linnaeus on the sixth of May, on her trip from Bordentown ; he had gone up from Philadelphia on the State Rights. He thinks the State Rights left Bordentown first, but was going down slowly until the Linnaeus was going by her, she then came in contact with the Linnaeus. There were a number of ladies on board 30 MAY SESSIONS, 1836. Ralston and others v. The State Eights. the Linnaeus, who were much alarmed. After a while, the boats got started again ; another attack was made, he believes at Burlington, but is not positive whether there was another before they reached there. At Burlington, he says, the State Rights was ahead. The Linnaeus stopped in the River to give the State Rights room to come off; she at length left the wharf, and went into the channel, as if going down the river ; the Lin- naeus then made up to the wharf ; the State Rights returned and struck her in the bow. This is the evidence of Mr. Wilson, upon which I will remark that it appears to me he refers to what happened near the coal wharf of Bristol, at the head of Burlington Island, as detailed by the respondent's witnesses, and which seems to me to have been the first collision between the boats on the 6th of May, and of consequence. Captain Reeves has been in error in his account of the proceedings of that day, and confounded them with the occurrences of some other time, perhaps of the thirtieth of May. This will more clearly appear as we proceed with the evidence. Edward Buckingham also went from Philadelphia to Borden- town, on the sixth of May, in the State Rights, and returned in the Linnaeus. He speaks of the State Rights running foul of the Linnaeus as she lay at the wharf at Bordentown, accord- ing to his recollection. That the State Rights lay a little above the Linnaeus ; that she took in her passengers and pro- ceeded towards the Linnaeus before she started, then drew back about an hundred feet and came at her a second time. The Linnaeus took in her passengers and proceeded down the river ; the State Rights ran foul of her athwart the bow ; the Linnaeus stopped her engine ; the passengers asked what was the cause of the collision; the captain of the State Rights made no answer, but laughed. The passengers of the Linnaeus were much enraged ; they wanted Captain Reeves to'draw up a writing ; he did not seem willing to do it. They said the conduct of the captain of the State Rights ought to be made public. Mr. Wilson drew up the paper, George Turner, was on board the Linnseua on the sixth of MAY SESSIONS, 1836. 31 ' Ralston and others v. The State Rights. May. He speaks of none of the occurrences of that day until they arrived at Burlington. In crossing from Bristol to Bur- lington, he perceived the steamboat Burlington there at the wharf. The State Rights was before the Linnaeus, and went and lay alongside of the Burlington. When Captain Reeves got near he stopped his boat ; he then started, and beckoned to his passengers to go to the lower wharf, but perceiving that they had a good deal of marketing, he turned round to come to the wharf where the other boats lay. When the Linnaeus got near the wharf, the Burlington and State Rights stood off; the Linnseus then went alongside of the wharf, and made fast. The State Rights came in and ran foul of the bow of the Lin- nseus. The State Rights appeared to rebound, and came against the Linnseus a second time. The engine of the State Rights was going. It seemed as if they wished to get a line ashore from the State Rights, and this was afterwards done. The passengers condemned the conduct of the State Rights very much. This is the evidence of the libellants as to occurrences of the sixth of May. I am strengthened in my opinion that in the narrative of Captain Reeves, he has fallen into some error, by misplacing into that day events which took place at another time. None of the witnesses describe the collisions of that day as he has done, or speak of any at the place he has desig- nated. The collision at the head of Burlington Island, near to the coal wharf, and about a mile from Bristol, and that which happened at the wharf of Burlington, seem to me to be all that took place on the sixth of May. As to the occurrences at Burlington wharf, I shall give my opinion after recurring to the testimony of the respondent. Our knowledge of the events of the sixth of May is not much increased by the respondent's witnesses, particularly as to what happened prior to the arrival of the boats at Burling- ton. William Vandegrift and Lewis Craft may, and it is pro- bable they do, refer to that day, although the first speaks of the " fore part of May," and the other of " about the first of 32 MAT SESSIONS, 1836. Ralston and others v. The State Eights. May, or a little later." As, however, the answer of the re- spondent charges that the Linnaeus did, at several times, run into the State Rights, which is denied by the replication, this evidence should be attended to whether it relates to the sixth of May, or any other day previous to the thirteenth of June, the date of the last aggression complained of in the libel. These witnesses, Vandegrift and Craft, testify that they were on shore, on the Jersey side of the river, one of them on the island, the other on the main land. Mr. Vandegrift saw the Linnaeus with her bow in the State Rights, shoving her over towards the Jersey shore ; that the State Rights was near running aground ; that she then took a sheer and ran the Lin- naeus over to the Pennsylvania shore, where the Linnaeus stopped her engine. Mr. Craft deposes that he saw the boats coming down the river, the State Rights being a little behind when he first saw them. As they passed the witness, the State Rights came alongside the Linnaeus, or nearly so, the Linnaeus then being on the Pennsylvania side, and, as the witness thought, heading rather across, to go to Burlington. The State Rights was going directly towards Burlington. The advantage of the tide was with the Linnaeus until they got under Burlington Island, when the State Rights got the advantage and put the Linnaeus across to the Pennsylvania shore. The collision arose from the one going down and the other across the river. It turned the State Rights out of the course she had been going. When they came in contact the Linnaeus was near the Pennsylvania shore. The witness says explicitly that the State Rights might have passed the Linnaeus without coming in contact with her; there was the whole breadth of the river for her. The conclusion, in my understanding, from this testimony is that, in this instance, the State Rights was the aggressor. The Linnaeus was going on her way, near to the Pennsylvania shore, when the collision occurred ; the State Rights, coming after her, had the whole breadth of the river to pass in ; but, instead of doing so, she crowded on to the Linnaeus, thus com- MAY SESSIONS, 1836. 33 Ealston and others v. The State Eights. pelling her to turn towards Jersey, to keep herself off the Pennsylvania shore. Favoured by the course of the tide, which, at that place, set over to Burlington Island, the Lin- naeus was, at first, enabled to press the State Rights in that direction, but as soon as she lost this advantage the superior strength of the State Rights prevailed. In the account of James Byre, and of William Thornton, the pilot of the State Rights, there is nothing to contradict this evidence of Mr. Craft, or to remove or weaken the con- clusion it leads to. William Thornton is very brief in his account of it. He says : About Bristol coal wharf, I tried to steer my course for the Bristol wharf; the Linnaeus rather sheered over towards the Jersey shore ; this brought the State Rights near to the flats. The witness told Captain Allen he had better stop. The captain said, no : put the helm to steer on to the Pennsylvania shore. I did so ; and we steered the Linnaeus, by the same helm, just below the coal wharf. He says nothing to gainsay the position of the Linnaeus near to the shore, when they came in contact, nor does he deny that he had the whole breadth of the river to pass her without a col- lision. As to the transactions at the wharf at Burlington, I will for- bear to repeat, in detail, the testimony of the witnesses who have spoken of it. Taking the whole together, the truth of the case appears to me to be that the State Rights came over to Burlington before the Linnaeus, and found the steamboat Burlington lying at the wharf there. She went alongside of the Burlington, and took in or put out some of her passengers across the deck of the Burlington, but not the whole, waiting for the departure of the Burlington to get in to the wharf. In the mean time the Linnaeus came over and was also waiting to come to the wharf. The Burlington, having finished her busi- ness, cast ofi" from the wharf to proceed on her passage, and the State Rights, lying alongside of her, was obliged also to draw off with her. The vacancy thus occasioned afforded Cap- tain Reeves the opportunity to slip in to the wharf, as one of 34 MAY SESSIONS, 1836. Ralston and others v. The State Bights. the -witnesses expressed it, before the State Rights could return to it. She was, therefore, thus prevented from coming along- side of the wharf, but had to go to the lower end of it, and put her plank out there to receive whatever was to come on board. In doing this she came in contact with the bow of the Linnaeus, and did her some damage. If the courtesy of the river gives, as I would suppose, the boat first arriving the right of going first to the wharf, then Captain Reeves committed a breach of this courtesy in taking advantage of the drawing off of the State Rights to let the Burlington out, to run in to the wharf before her. I cannot believe, as some of the witnesses do, that the State Rights had actually gone off with the intention of proceeding on her passage down the river, and returned with the design of running foul of the Linnaeus. So gross an outrage ought not to be presumed from doubtful appearances ; nor believed without the most satisfactory proof. I am satisfied that the State Rights returned to get to the wharf to take in such passengers or marketing as she had not got across the Burlington ; and this opinion is strongly confirmed by the fact that she cast a line on shore and put out her plank at the end of the wharf, which would have been needless if her only object was to strike the Linnaeus. If then the captain of the State Rights in his eagerness to get to the wharf for a proper and lawful purpose, and excited to some resentment by the manner in which Captain Reeves had got in before him, was not very careful in coming under the bows of the Linnaeus. I am not inclined to visit him with any harsh condemnation for the con- sequences. Upon the whole, as to the occurrences of the sixth of May, I regret that the confusion and uncertainty of the evidence relating to what happened between Bordentown and Bristol, including the testimony of Captain Reeves, have prevented so clear a view of the truth of the case as I could have desired. Still, in the encounter near the coal wharf. Captain Allen seems to have shown a consciousness of his superior strength, and a disposition to use it oppressively. The Linnaeus was MAY SESSIONS, 1836. 35 Ralston and others v. The State Rights. close on the Pennsylvania shore, while the State Rights had the whole river to pass on to Bristol without coming near her, and the superior speed of the former enabled this to be done at pleasure. We come now to the transactions of the thirtieth of May, where we shall stand upon firmer ground, and with no substantial difference between the witnesses. Some of them are particu- larly entitled to confidence, from their character, the total absence of all interest in the controversy, the manner of de- livering their evidence, and their clear and consistent accounts. I will begin with the testimony of William Thornton, the pilot of the State Rights, that we may compare it, as we go along, with that of the witnesses for the libellants. After speaking of what happened at the coal wharf near Bristol, he says : two or three weeks after this, coming from Bordentown, the Linnseus was ahead ; he steered his course on the west side of the river, so as to get past the Linnseus ; she kept sheering on the bar above the railroad wharf; by coming on a bar a boat will sheer, and you cannot help it ; by sheering, the State Rights struck the after part of the Linnseus, but this did not arise from his altering his course. The State Rights got very near the railroad wharf before witness could change her course. There is a point puts out just there, and Captain Allen said, they crowded us on the bar, we will crowd her on the Pennsylvania shore ; and this was done. I presume, for it was not distinctly stated, that the crowd- ing on the bar which Captain Allen alluded to, was when he was making the attempt to get between the Linnseus and the Pennsylvania shore, when he came on the flats, and took a sheer that carried him over to the railroad wharf. But why did he make that attempt ? Why did he not pass down on the east side of the Linnseus, where there was room enough between her and the Jersey shore ? It was by making this attempt that he was brought, by accident, according to Thorn- ton, or by design, as the other witnesses believe, in collision with the Linnseus the first time. As to the second collision, 36 ~ MAY SESSIONS, 183G. Kalston and others v. The State Rights. a short time afterwards, that is, when the State Rights crowded the Linnaeus on to the Pennsylvania shore, ev.en. Thornton tes- tifies that it was wilful, and intended by the orders of Captain Allen, in retaliation for the real or supposed previous aggres- sion on the part of the Linnaeus. It will be found that the differences between the evidence of the pilot of the State Rights and the witnesses on behalf of the libellants do not consist of contradictions, but of omissions in the evidence of Thornton, as I believe, from a want of recol- lection, and not from design. The stories of all are consistent, and may all be true. They may not agree in their opinions, but the main facts stated by them all are reconcilable. On this part of the case, I mean the circumstances of the thirtieth of May, the libellants have produced a great number of witnesses, most of whom give so clear and consistent an account of them, that it is not possible to question their gene- ral accuracy. Captain Reeves is first in order, although his evidence might be entirely dispensed with without injury to the case. He says that he left Bordentown on that day about two minutes before two o'clock ; that the State Rights came after him and got up alongside, then put her helm up and ran into the Lin- naeus as hard as she could come. This was between Borden- town and the railroad wharf, about half a mile below. The State Rights then took a sheer, and went across the river towards the railroad wharf. So far he agrees with Thornton, except that the latter affirms that his boat flew off from her helm, or took a sheer by coming into shoal water, and that he did not alter the helm ; whereas Reeves declares that the State Rights put up her helm and ran into him. Supposing the witnesses to be of equal credit, and the truth of the fact to depend only on them, I would say that it was better known to Thornton than Reeves, who may have inferred that the helm was put up from the change in the course of the boat, whereas Thornton, who had the helm, knew positively how the fact was, and has attri- buted the sudden change of course to another cause. Leaving MAY SESSIONS, 1836. 37 Ealston and others v. The State Rights. this question, for the present, as it stands between these wit- nesses, we proceed with Captain Reeves. He says, after stating that the State Rights went across towards the railroad wharf, that he then got ahead ; that the State Rights got her head down, and came after him again ; that he took the Pennsylvania side of the river, and told his passengers to take notice that he was going to give the State Rights all the stream, and that he did so. The State Rights caught him again, and ran foul of him, striking him on the guard just forward of the wheel. The ladies on board were much alarmed. His pas- sengers got ropes ready to tie the captain of the State Rights. Thornton also admits this second collision, and agrees with Captain Reeves as to its locality ; but accounts for it in this way : the sheer on the flats had carried him over to the rail- road wharf, where he had to stop his wheels ; he then steered very nearly down the river, as straight as he could, when Cap- tain Allen told him to steer to the Pennsylvania shore, where, it will be remembered, the Linnseus had gone to give the whole river to the State Rights, and there Captain Allen ordered the pilot to steer. Had the witness stopped here, we should have been ignorant of the motive and object of this order, and might have concluded it had reference to the point which pro- jected below the railroad wharf ; but the witness very frankly stated the motive of the order, as declared by Captain Allen himself. The captain said, "They crowded us on the bar, we will crowd them on the Pennsylvania shore." John Longstreth, a witness on whom I have much reliance, says that, on the thirtieth of May, he left Bordentown in the Linnseus ; the State Rights left a few minutes after, very soon overtook them, and appeared to be going past them on the Jersey side, but presently turned and came on the Pennsylvania side. I stop to remark, that this change of purpose is not accounted for by Thornton, who only says he was trying to steer his course on the west side of the river, but gives no reason for not keeping on and passing the Linnseus on the Jersey side, as Mr. Longstreth thought he was about to do, 88 MAT SESSIONS, 1836. Ralston and others v. The State Bights. and as he might have done. The witness proceeds : when the State Rights had got on the Pennsylvania side, and nearly- opposite to us, she turned and ran directly towards us ; but missed the Linnaeus about three or four feet. Of this move- ment Thornton says nothing. She, that is the State Rights, says Mr. Longstreth, immediately turned, and went between us and the Pennsylvania shore again ; she then turned a second time, and struck us very near the hind part of the boat. This is the sheer of which Thornton speaks. The witness continues : we were then tolerably near the Jersey shore ; so near that the State Rights had to stop her wheels. We kept on ; the State Rights then came down on the Jersey side of us, and struck us in front of one of the wheel-houses, running us across near to the Pennsylvania shore. The Linnaeus then stopped her wheels, and the State Rights went on. This witness says, as Captain Reeves does, that, when the State Rights first over- took them, she ran alongside, between them and the Jersey shore, and then passed over to the other side. The witness supposed she would pass them in the course she was taking when she overtook them, that is, on the Jersey side. And why did she not ? No explanation is attempted ; no reason is given why the pilot of the State Rights should change his course and try to steer on the west side of the river, between the Lin- naeus and the shore, when there was ample room on the other side, and in the very course he was going when he overtook the Linnaeus. The wife of Mr. Longstreth was on board, and a good deal alarmed. The witness wrote to his father-in-law not to let his daughter come down in the Linnaeus, on account of these occurrences, and he would himself have left her at Bristol, if the State Rights had not gone off before them. He thought there was no necessity for the State Rights to come in contact with the Linnaeus. From her running on both sides of them, he thought there was room enough to pass. The impression of the witness, and of the other passengers, was that the captain of the Linnaeus conducted himself very pro- perly, and the captain of the State Rights very badly. He MAY SESSIONS, 1836. 39 Ealston and others o. The State Rights. •would not be willing to let his family go in the Linnaeus so long as the same captain had charge of the State Rights. Some of the passengers of the Linnseus thought of boarding the State Rights, but he was not one of them. He is not ac- quainted with the shoals in the creek at Bordentown, nor with the state of the tide when the boats came out. Benjamin Barton, who was examined out of his turn, gives an account of the occurrences at the head of Burlington Island, upon which I have nothing more to remark than that he says he was on board the State Rights, and thought she would run the Linnseus on the sand ; that he, with other passengers, went to Captain Allen and told him his boat was the strongest, that if he did not stop his wheels he would surely run the Linnseus on shore. The captain replied, that if it were not out of con- sideration for the ladies, he would put the Linnasus there, for there she ought to be. The witness also details the proceed- ings at the wharf at Burlington, and confirms my view of it. He was not on board on the thirtieth of May, to which I return. William E. Tatem was, on that day, a passenger on board of the Linn^us from Bordentown. They left before the State Rights, and had proceeded about a mile down the Pennsylvania shore, when the State Rights appeared to be passing between them and Jersey ; all at once she tacked about and ran towards the Pennsylvania shore. The witness thought she was coming into them, but she went a little astern. I remark again that this movement is not accounted for or mentioned by Thornton, although it caused the running on the flats which gave him the sheer he speaks of. The witness went to the stern of the Lin- nseus to see where the State Rights was going. She ran across as near as she could to the shore (here she got on the flats), and then turned again towards the Jersey shore. Witness thought she was coming into their wheel-house. She struck them on the side, near the stern, a very hard blow. The Lin- naeus was then heading directly down the river, and the State Rights directly across, so that she had to stop her wheels to avoid going ashore on the Jersey side. She then turned and 40 MAY SESSIONS, 1836. Balston and others v. The State Bights. struck them on or near the wheel-house, on the side next the Jersey shore : she lay along side of them, with her engine going, edging them over to the Pennsylvania shore by main force. The Linnffius would have gone on shore if Captain Reeves had not stopped her engine. All this was done, as Thornton testifies, by order of Captain Allen. This witness — Tatem — as the rest, says that the State Rights is the strongest and fastest boat ; there is no comparison between them. She passed the Linnaeus when she pleased, and came up with her when she pleased. He also testifies to the mild conduct of Captain Reeves, that he tried to shun the other boat, and kept his course down as near as he could. The witness has no doubt the at- tacks were made intentionally. Alexander S. Reed was on board the Linnaeus on the thirtieth of May. They left Bordentown about an hundred yards in advance of the State Rights ; the latter ran down between the Linnaeus and the Jersey shore, her bow overlapping their stern about fifteen or twenty feet ; she then dropped astern and took her course to the Pennsylvania side. At the distance of about twenty yards, the Linnasus continuing her course, the State Rights made a sudden tack, with intention, as the witness thought, of running into them, but fell astern. She then put about again and ran between the Linnaeus and the Pennsylvania side a second time, going rather further ahead than on her first attempt. She made a second tack, and the witness thought she would strike them about the wheel-house. She struck them, however, on the starboard side, about two feet from the stern, and carried away part of the moulding.* She then passed over near to the Jersey shore, and tacked again, came down the river and ran into them sideways, her bow striking them just before the wheel-house. She continued working her engine, edging them on to the Pennsylvania shore ; Captain Reeves ordered his engine to stop, and thus dropped astern while the State Rights went on. The witness expressed a firm belief that it was the intention of Captain Allen to run them ashore. John Postall, another passenger, gives substantially the same account. MAY SESSIONS, 1836. 41 Ealston and others v. The State Rights. As regards then the proceedings of the thirtieth of May, we have a clear, consistent, and circumstantial history from the witnesses of the libellants, which is opposed, absolutely, by nothing in the way of contradiction or explanation, on the other side. The manner in which the pilot of the State Rights accounts for the sudden sheer of his boat, which produced the first collision, might be adopted if it were met only by the ac- count given of it by Captain Reeves, but can hardly be ad- mitted when tested by the evidence of other witnesses to the transaction. As to the first attempt, which failed, the pilot gives no explanation, and the second collision he declares was made by order of Captain Allen. The trespass and assault complained of on the thirteenth of June, when the Linnseus was lying ofi" Bristol wharf. The State Rights and steamboat Burlington were both there,- and the Linnaeus was waiting, in the stream, for their departure, to get in. The blow was a very severe one. It knocked the stem and cutwater of the Linnaeus off', tore up the plank shear, and deck of the false bow ; knocked, as Captain Reeves says, some of his passengers over on the deck, and broke some of the bar furniture. This attack is detailed very circumstantially by Isaac M. Reeves, a passenger in the State Rights, and unconnected with Captain Reeves. If he is not greatly mistaken in his view of the occurrence, the misconduct of Captain Allen was most wil- ful and violent. The Linnseus was lying still in the stream, and the State Rights, having left the wharf at Bristol to go to Burlington, might have gone on either side of her. Indeed, Captain Allen did not hesitate to avow the design ; he did not claim the apology of necessity or accident. When this witness told him that the women were much frightened, and asked him the reason of his running against the Linnaeus ; his reply was, to teach Captain Reeves better than to stop his boat in the way. After they left Burlington, the witness, with other pas- sengers, fell into conversation with Captain Allen, and asked him the reason of so many outrageous attempts being made on 42 MAY SESSIONS, 1836. Kalston and others v. The State Bights. the Linnaeus. His answer was remarkable ; he said that Cap- tain Reeves, some time before, had told him that the owners wished to sell the Linnaeus, and had, therefore, fitted her out to run on that line, supposing that the owners of the other line would take a fancy to her and purchase her, and that he, Cap- tain Allen, thought it was a great imposture, and he was there- fore fully determined to sink her or lay her up, so that they would have to take her off the line. This was his avowal to his own passengers, and it is difficult to imagine anything more daring or reckless of consequences. Joseph Evans, who was standing on the Bristol wharf, says there was ample room for the State Rights to pass the Linnaeus, but she ran foul' of her nevertheless. The witness judged that the State Rights deviated from her course to run foul of the Linnaeus. James Dougherty gives, out of order, an account of the pro- ceedings of the thirtieth of May, similar to those already given. So of John Richmond, who was on board on the thirteenth of June also. Several other witnesses testify to the various collisions, with no material variance. Taking the facts of this case to be as the witnesses have testified, and I can have no other knowledge of them, I do not see how the inference can be avoided, that at least as to the affairs of the thirtieth of May and the thirteenth of June, the attacks upon the Linnaeus were wilful and malicious, and a most unjustifiable use, on the part of Captain Allen, of superior power, to injure and crush a weaker rival. If such were not the fair and unavoidable deduction from the circumstances of the several transactions, the express declarations of Captain Allen would remove all doubt on the subject. He never seems to have sought to shelter himself under any apology from ac- cident, or the necessity of his position. At one time he alleges that he was retaliating some previous offence of Captain Reeves ; at another, he will teach him not to be in his way; and at another he would punish an imposition, which he supposed the owners of the Linnaeus were attempting to practise on his MAY SESSIONS, 1836. 43 Ralston and others v. The State Eights. owners. And for such reasons he takes upon himself to ob- struct the navigation of a public river, to "sink or lay up" a rival boat, to put in jeopardy the safety of his passengers, and produce alarm and confusion among them. The opinion which we have had, from one of his friends, that he is an amiable, affable man, with a good disposition, will scarcely protect him from the consequences of such a reckless temper, and such dangerous designs. The only remaining question in this case is as to the damages to be awarded to the libellants. Some cases have been cited on this point which should be briefly noticed. It is contended that, where both parties are in fault, the . damages must be shared ; Jacobsen, Sea Laws, 328. I pre- sume the plain meaning of this is that they were both in fault, at the time, and in the acts, which produced the injuries to both, and not that one of the parties had, on a previous occa- sion, been in fault with the other. I should offer another m9di- fication to the generality of this rule in cases where the faults are egregiously unequal ; for a slight fault on one side would not justify a destructive retaliation on the other, even at the same time. In this case, however, on the evidence by which I am to judge it, the fault was altogether on the part of the re- spondent, at least in relation to such of the injuries as will have weight on my judgment. Again, it is said that in the case of collision of vessels, there can be no recovery beyond the actual damage. This may be true in cases of venal negligence, or a want of due skill and care, by which the injury occurred, but can hardly be applied to a case of a wilful and malicious assault upon the property and rights of another, with a direct view to profit and gain. The injustice is manifest, of putting such a case upon the same footing with one of mere want of care and skill. The defence proceeds one step farther in the march of im- munity and irresponsibility on the part of the owners of the State Rights, for the wrongs done by their captain. The 44 MAY SESSIONS, 1836. Ralston and others v. The State Rights. violence and wrongs are charged and proved to have heen wilful and malicious. "What, then, it is asked, have the owners of the vessel to do with them ? It is admitted that they are bound to employ competent, careful, and skilful agents ; but it is denied that they are answerable for the wilful torts of their captain. I cannot accede to this doctrine. In the page of Jacobsen, cited for the respondent on another point, it is said : " if the damage is wholly created by one ship, and that through the fault of the master, he is to repair the damage alone, if he is able ; otherwise, the owners, as far as their interest in the vessel and freight extends." It is not clear what is meant by "the fault of the master." Whether it was intended to em- brace only negligence and want of skill, or wilful wrong also ; the generality of the expression comprehends both, and there are other reasons for this construction. We may, however, be satisfied on this point by other authorities. In the case of Bussy v. Donaldson, 4 Dallas, R. 206, the chief justice, in giving the opinion of the court, says, that the defendant admits that, in ordinary cases, the owner of a ship is answerable, civiliter, for the injuries committed by the cap- tain and crew, but that, in that case the vessel was in charge of a pilot, who was not the voluntary agent of the owner, but an officer of the public. The owners were nevertheless held liable. It was a case of running foul of, and sinking a; vessel, by negligence and unskilful management, but the principle of the liability of the owner makes no distinction between wilful and negligent acts of the captain ; the line drawn is between a civil and a criminal responsibility, between a tort and a crime committed by the captain. In the case now before this court, I do not understand it to be denied, that the owners of a vessel are answerable for the acts of their captain done within the course and scope of his employment and business. Is this not enough for this case ? Assuredly it was within the course and scope of the employ- ment and authority of Captain Allen to direct the State Rights to be steered at his pleasure ; he had full power to do this. MAY SESSIONS, 1836. 45 Kalston and others v. The State Rights. derived from his owners, and all on board were bound to obey his orders, without interposing their judgment as to the conse- quences to him or his owners. If by the execution of such an order a wrong is done to another party, on what principle of the common or maritime law can the owners of the offending vessel, the principals of such an agent, whom they have armed with the power to do the wrong, throw the responsibility from themselves ? It is widely different from the case of the com- mission of a crime by the captain, which cannot be imputed to his owners, or be intended to come within the employment or authority committed to him. In the case of Dras v. The Owners of the Privateer Revenge, 3 Wash., C. C. R., 262, Judge Washington gave a close atten- tion and labored examination to this subject. The question there was, whether the owners of a privateer were liable to make good the damage which a neutral had sustained by an act of piracy, committed by those to whose management the owners had committed their vessel. The owners were not held responsible for the piracy, but, it is said, if the captain " had ■ made an illegal capture, whether wilfully or hy mistake, the owner would have been answerable for all damages resulting from the act." The reason seems to be because in making a capture as a prize, the master was acting in execution of the business with which the owners had charged him. The judge says : " His commission authorized him to seize as a prize of war ; to exercise an acknowledged and belligerent right, in doing which he might be guilty of a mistake, or might wilfully abuse his right ; in either case he acts at his own and his owner's peril." Not so, if he turns his back on the business entrusted to him, and commits acts of piracy, for which he was not directly or impliedly employed. In our case, the management and steering of the State Rights were put into the hands and under the will and discretion of Captain Allen ; it was his business, his employment and right, and if he abused his authority by mistake, by negligence, or wilfully, to the in- jury of another, both he and his owners are responsible for it. 46 MAY SESSIONS, 1836. Kalston and others v. The State Rights. In reviewing the common law doctrines of master and servant, Judge Washington considers them to be analogous in their principles, but not the same with those that govern the cases of the owner and master of a vessel. He says, " the case of M'Manus v. Cricket, 1 East, 106, proves too much in relation to a case of capture, for which it was cited. It admits, that for the mischief arising from the unskilful or negligent driving of the master's carriage, the master is liable in an action on the case ; but not so if it were wilfully committed ; because, it is said, in the latter case the servant does not act in pursuance of the authority given him. Neither does the master of a pri- vateer act in pursuance of the authority given him, when he wilfully commits spoliations on property seized as prize, and yet in this, and similar cases, the owners are clearly liable for the misconduct of the master." The judge then passes from the supposed analogy of master and servant at common law to cases governed by the maritime law in relation to owner and master, and he sums up the principle thus : " We find that the former (the owner) is liable for all acts of the latter done in the execution of the business in which he is employed, by which third persons are injured, whether the injury was occasioned by the wilful acts or by the negligence and want of skill of the master." He illustrates this principle by several familiar ex- amples, all showing that for an abuse of the trust by wilful misconduct, and by want of care and skill, of the master, his owners are responsible. Dean v. Angus, Bee's R. 369; Fletcher v. Braddick, 2 New R. 182 ; Reynolds v. Toppan, 15 Mass. 370 ; The Dundee, 1 Haggard, 109, 113, 120 ; Abbott on Shipping, Part 3, ch. I. The question of the liability of the owners of the State Rights being, in my opinion, thus settled ; the damages to be recovered, for the wrong and injury done, only remain to be considered. This may in a measure depend upon what we un- derstand by exemplary damages. In my estimation they are not, strictly and legally speaking, damages given dehors and beside the act of wrong complained of, or the injury done by MAY SESSIONS, 1836. 47 Ralston and others v. The State Eights. it ; no new and subsequent injury or loss is brought in to aid or add to the damages ; they are attached inseparably to the tort committed upon the person or property of the complainant. The damages which are called exemplary are nothing more than a high and exaggerated estimate of the wrong or injury, which courts and juries take upon themselves to allow, bringing into the calculation, not a new and distinct injury, but some- thing beyond the mere pecuniary loss or personal suffering, still belonging, however, to the original wrong and to no other. I would instance the cases of arrest by a general warrant issued by a Secretary of State ; in which enormous damages were given by the juries, and affirmed by the court, although the personal suffering was really nothing, but the essential, in- valuable, political rights and liberty of the plaintiff were sup- posed to have been violated, and this wrong was added to the personal injury as a part of it. This exaggerated estimate of the damages of the tort which is the ground of the action, is generally resorted to on some principle of public policy, as in the cases just mentioned. So in the case of an atrocious and dangerous libel, the real injury to the plaintiff may be in- considerable, but the preservation of the public peace calls for a high estimate of the wrong, that private revenge may not be resorted to for such injuries. Consequential damages are of a different character ; they arise from a new injury sus- tained in consequence of the first wrong, and derived from it, but which is not inseparable from it, but may or may not have happened according to circumstances. Such was the case cited from Jacobsen, 328 ; in which a vessel was so damaged by being run down, that, in refitting, she lost the tide, and was taken by a privateer. Her capture was the consequence of the first wrong, but not a part of it. I think, therefore, that it is not legally correct, to say that a court cannot give exemplary damages, in a case like the pre- sent, against the owners of a vessel. If any damages may be awarded, the sound discretion of the court must be exercised in ascertaining them. If they are excessive they will be miti- 48 MAY SESSIONS, 1836. Kalston and others v. The State Rights. gated by an appellate tribunal, whether they be called exem- plary or not ; if they are just and reasonable, they will not be disturbed because of the name that may be attached to them. There is no subject upon which more repeated and solemn complaints have been made to the public, and few of a deeper interest to the community, than the accidents, always attended with frightful alarms, and sometimes by the most fatal and melancholy consequences, from the collision of steamboats. Many of them have been occasioned by the contest between rival boats, maintained with a reckless disregard of human life. Our river has been particularly exempt from these disasters, and it should be the determination, as it is the duty, not only of the courts when appealed to, but of every good citizen, to keep it so. Although from the notoriety of the transactions complained of in the libel, their repetition several times in a few .weeks, and from a publication made by some of the passengers of the Linnseus, I cannot go so far as to say, as Judge Story did in the case of the " Amiable Nancy" (3 Wheaton, 558), " that the owners of the 'State Rights,' were in absolute ignorance of the conduct of their captain, that they are innocent of the demerit of this transaction, having neither directed it, nor countenanced it, nor participated in it, in the slightest degree," yet I am far from believing that this respectable company, under the direction of individuals highly and justly esteemed, could have been truly and particularly informed of these pro- ceedings of Captain Allen, and especially with the vindictive motives he avowed for his misconduct ; but they have been too inattentive to the manner in which he was using the authority they had committed to him. I am therefore not disposed to inflict upon them " vindictive damages," nor to make an ex- travagant estimate of them. There is reason to believe, from some of the testimony, that the injury to the body of the boat may be greater than can be precisely ascertained at this time. In a case like this, the actual damage is not limited by the cost of repairing the MAY SESSIONS, 1836. 49 Kalston and others v. The State Eights. broken parts of the boat. The loss of business, by laying her up for repair, by preventing passengers from going in her on account of the danger and alarms of these collisions, are proper items of charge in estimating the damages. But I can by no means approach the amount 'which the libellants have imagined they are entitled to. I shall do what on my best understand- ing all the circumstances of the case, I think its truth and justice require of me. Dbceeb. I do adjudge, order, and decree, that the libellants shall have and recover the sum of two hundred and fifty dollars, damages, for the wrongs and injuries complained of in their libel ; and that the steamboat " State Rights" be condemned and sold for the payment and satisfaction of the said damages, with costs of suit, according to the prayer of the libel. DISTRICT COURT OF THE UNITED STATES. €uUu iytiitt nf ^snuBiiliuniia. AUGUST SESSIONS, 1836. DELUCBNA L. BINGHAM, MAKINEE, V. JOB W. WILKINS, LATE OWNER AND MASTER OP THE SCHOONER HERO. 1. Where suit has been brought in a State tribunal, and discontinued, this Court will sustain a libel for the same cause of action. 2. A voluntary discontinuance, by a party plaintiff, is not satisfaction of the debt or cause of action. 3. Satisfaction of a debt is not ground to quash the proceedings in a suit thereon. 4. The Court will not suffer a party to be held to bail in two places at one time, for the same cause of action. This was a libel for wages, with a capias against the master. The libellant commenced suit against the respondent, on the 21st May, 1836, before an alderman of the city of Philadel- phia, for the same cause of action. The warrant was returned, and the parties appeared, on the 11th August. After a par- tial hearing, the suit was adjourned till the 27th August, but was immediately discontinued by the plaintiff, who, on the same day, after the discontinuance, filed his libel, and issued a capias against the respondent, from this Court. Special bail was given on the 3d September. On this state of the facts, Fallon, for respondent, obtained a rule, on the 5th September, to show cause why the proceed- ings should not be quashed. AUGUST SESSIONS, 1836. 51 Bingham v. Wilkins. On the 19th Septemher, 1836, the case came on for argu- ment, on the rule, before Judge Hopkinson. Fallon, for the respondent. The acts of libellant, before the magistrate, amounted to a satisfaction of the debt, or to a barring of the institution of a suit in this Court, or, at least, destroyed his right as against respondent ; the libellant, having elected to institute his suit before a State magistrate, is barred from his suit here. Act of 24th September, 1789, § 9 ; 1 Story's Laws, 56. A de- fendant cannot be twice arrested for the same cause of action, nam nemo debet his vexari pro eddem causd ; except, among other cases, where the first suit is discontinued before the second is commenced. But the discontinuance must be com- pulsory, as, from a defect in the first suit ; and the libellant cannot discontinue his suit wrongly and voluntarily, for the mere purpose of taking it up to another court. 1 Selon Pract. 42, 43 ; Bates v. Barry, 2 Wils. 381 ; Grubb v. Grubb, 1 Yeates, 193, S. C. 2 Dall. 191, 192; Horn v. Roberts, 1 Ashm. R. 45. In this case the parties appeared, the hearing commenced, and was adjourned for further hearing. In the mean time, the case was discontinued. This amounts to satis- faction of the debt. A discontinuance will not be allowed after a juror has been sworn. Before a magistrate, where there is no jury, the rule applies to a hearing. Grinnell, for libellant. The application came too late. The bail and stipulation have been given to the Court, before the application was made. It should have been alleged, by a plea in abatement, that another action was pending. If respondent has been held to bail, pending another suit, where bail has been given, the Court will not quash the proceedings, but will only discharge him on common bail. 1 Tidd. Pract. 184. This is not twice vexing for the same cause of action. Field v. Colerick, 3 Yeates, 56. 52 AUGUST SESSIONS, 1836. Hart and Gilman v. The Otis. Judge HoPKiNSON delivered the following opinion : As to the claim being satisfied, or the debt discharged, by the discontinuance, there is no such law. A discharge from a ca. sa. on a judgment, is a legal satisfaction ; but not from mesne process, or by discontinuance of the suit. If the debt were satisfied, it might be ground of final decree in favor of libellant, but not of quashing the suit, even if he could show a receipt or release. The rule that no one shall be twice vexed for the same claim, applies only to the bail ; and does not aflford ground to quash the proceedings. On such a hearing, the Court will take care that the defendant is not held to bail in two places at one time, but never dismiss the suit. We leave the respondent to his plea. Rule discharged. GBORGIB HART AND JOHN GILMAN, MARINERS, V. THE BRIG OTIS, JOSEPH L. NOBLE, MASTER. 1. Where there is no entry, in the log-book, of the absence of a seaman ■without leave, and he is received on board again, his wages cannot be forfeited under the Act of 20th July, 1790. 2. There can be no specific forfeiture or deduction for misconduct which is not specially charged in the answer. 3. If seamen leave the vessel, against orders, to go before the Consul and complain of their treatment, it is not desertion. 4. Such conduct will not justify their imprisonment, nor the deduction, from their wages, of the amount paid other hands in their places while so im- prisoned. 5. If mariners do not desert, their intention so to do does not bring them within the Act of 20th July, 1790. This was a libel for wages. The libellants shipped on board the brig Otis, on the 6th AUGUST SESSIONS, 1836. 53 Hart and Qilman v. The Otis. September, 1836, and sailed from Philadelphia to Havana. On their arrival at the latter port, wishing to complain of the Cap- tain's treatment of them, they were forbidden to quit the ves- sel. They did so, however, and went before the American Consul, where the Captain found them. The Consul refused to listen to their complaint, and they left his office. They were then apprehended, imprisoned in the jail, chained, and set to breaking stone. A few days before the brig sailed they were brought on board, and performed their regular duty during the voyage home. These transactions did not appear to have been entered in the log-book. It also was shown that there had been some disagreement between the libellants and the mate, which was not alluded to in the respondent's answer. The brig arrived at Philadelphia on the 29th October, 1836, when the libellants' wages were refused them, and this suit was commenced, on the 11th November, 1836, for their wages during the time of service, at the rate of sixteen dollars per month, with certain credits for payments made. On the 16th November, 1836, the case came on for a hear- ing before Judge Hopkinson, and was argued by Gilpin for the libellants, and by Fallon for the respondent. Fallon, for respondent. The libellants forfeited their wages, under the act of 20th July, 1790, by leaving the brig at Havana ; and the respon- dent was entitled to deduct from their wages the amount paid to other hands, engaged in their places, during their imprison- ment. Thorne v .White, 1 Pet. Adm. Decis. 168, 173 ; White- man V. The Neptune, 1 Pet. Adm. Decis. 180, 182. On the 25th November, 1836, Judge Hopkinson delivered the following opinion : Whiteman v. The Neptune was a case of voluntary absence, and not one where the mariner was taken away by a force which he could not resist. 54 AUGUST SESSIONS, 1836. BroTrn v. The Independence. The transactions between the men and the mate are not a part of the case, except under the general charge of miscon- duct, and there can be no specific forfeiture or deduction on this account. As to what the libellants said, it is only explanatory of what they did, but what they did is the point of inquiry. Did they desert ? Their intention was nothing if they did not. It was not such a desertion as to forfeit their wages, for there was no entry of the fact on the log-book, and they were again received on board. The imprisonment at Havana was most unjustifiable. They went to the Consul to complain. The Captain had made no complaint of them, but they went to complain of him. Was this desertion ? Was any desertion pretended ? Was it such a desertion as authorized the imprisonment ? It was, at most, disobedience of orders. But the Captain found them at the Consul's, and the offence seems to have been, not desertion, but that they had dared to complain of him. Finding they would not be heard, they left a tribunal in which they, justly, had no confidence ; and when the Consul and Captain issued their warrant of arrest, they did not know or inquire whether the men had not returned to the vessel. In truth, some of them had done so. Decree for libellants for the full amount of wages claimed, and costs. WILLIAM BROWN, MARINER, V. THE BRI& INDEPENDENCE, J. S. HOWELL, MASTER, 1. A Consul's certificate is not evidence of acts not official or within his per- sonal knowledge. 2. Such a certificate is evidence to remit a penalty due to the United States. 8. Where a seaman, shipped for a voyage, is so severely chastised, with an im- AUGUST SESSIONS, 1836. 55 Brown v. The Independence. proper weapon, because of his insolence, as to be necessarily left behind at a foreign port, he is entitled to his wages to the time of the yessel's arrival at the last port of delivery ; 4. But not to the benefit of the Act of 28th of February, 1803. This was a libel for wages. It appears that libellant shipped as cook on board the brig Independence, at Philadelphia, on the 18th November, 1835, at sixteen dollars per month ; that the brig was bound to Li- beria, thence to a port in South America, thence to a port in Europe, and thence back to Philadelphia; that the libellant actually sailed in her from Philadelphia to Liberia, from Liberia to Bahia, from Bahia to Falmouth, in England, and from Falmouth to Hamburg ; that, while at Hamburg, during the captain's absence from the brig, the libellant used in- sulting language to the mate, and resisted him by force; that the mate struck him on the head with a log of fire-wood ; that the libellant was so much injured thereby as to be taken on shore and placed in the hospital by the local police authorities ; that before the brig sailed from Hamburg the captain wished to have the libellant on board again, but that it was refused by the persons in charge of the hospital ; that the brig then sailed without the libellant, and that she arrived at Philadelphia on the 20th October, 1836. The libel was filed on the 11th November, 1836, and libel- lant claimed as follows : — Wages from I8th November, 1835, to 20th October, 1836, . . $176 00 Deduct credits (specifically enumerated), .... 122 89 Wages due, . . . . . . . . 53 61 Add two months' wages utder Actof 28th February, 1803 (2d Story's Laws, 882), 32 00 Whole amoxmt claimed, ...... $85 61 The respondent claimed to have paid to, or on account of the libellant, $50 48, over and above the amount properly due, and prayed a recovery of this sum. 56 AUGUST SESSIONS, 1836. Brown v. The Independence. The case came on for a hearing, before Judge Hopkinson, on the 18th November, 1836, and was argued by Gilpin for libellant, and Randall for respondent. On the 19th November, 1836, Gilpin offered, in evidence, the certificate of the American Consul at Hamburg, to prove the transactions at that port. It was objected to on the part of the respondent, because there was no proof of the consul's handwriting, and the certificate was to prove facts which the respondent denied. Gilpin referred to the Act of 28th February, 1803, 2 Story's Laws, 883; Act of 14th April, 1792, 1 Story's Laws, 235; Bull. N. P. 225, 229; 1 Stark. Ev. 173; United States v. Liddle, 2 Wash. C. C. R. 205; United States v. Mitchell, 2 Wash. C. C. R. 478 ; 3 Wash. C. C. R. 95. Randall was stopped by the Court. Judge HoPKiNSON said : The Court do not say that there may not be certain matters in which the ofiEicial acts of the consul may be proved by his oflScial certificate; but the facts stated in this certificate are not of that character. This is to prove another certificate of the time of Brown's discharge from the hospital ; the proceed- ings of a police court, the sentence of that court, the nature of the wound infiicted on Brown, and the hospital expenses. None of these are official acts of the consul, nor did he know one of them of his own knowledge. Had he sworn to them it would have been hearsay evidence. He certifies to facts and pro- ceedings before another tribunal, with which he had nothing to do, and of which he had no knowledge, official or personal. I will admit the certificate so far as to show that the libellant was left at Hamburg, without the consul's knowledge or con- sent, because that is material, but not to prove the rest that it contains. AUGUST SESSIONS, 1836. 57 Brown v. The Independence. The certificate meant by the Act of Congress is only of use in the cases there mentioned, and also to remit a penalty due to the United States as an admission against their interest. The evidence was rejected. On the 25th November, 1836, Judge Hopkinson delivered the following opinion in the case : In this case penalties are claimed on both sides. The libel- lant counts upon his full wages for the whole voyage, and also upon two months' pay for having been left by the captain in a foreign port. On the other hand, the respondent insists that he is not entitled to his wages home, and that he is chargeable with heavy expenses incurred for him in the hospital at Ham- burg. The libellant had received a severe wound on the head, in- flicted by a stick of fire-wood. He had behaved with great and provoking insolence to the mate. I give no opinion as be- tween them. It appears that the police officers of the port, who had seen the afi'ray with the mate, came, of their own accord, on board of the brig, went below, where the libellant was, took him on shore and put him in the hospital. He neither went on shore by his own will and act, nor was he put or left there by the captain. On the contrary, the captain was very desirous to have him and bring him home ; but, after waiting, he could not get him, and was obliged to leave him behind. Should the captain, under such circumstances, pay the pe- nalty of two months' wages, allowed to a seaman who is dis- charged without good cause, in a foreign port ? I think he did not discharge him ; he was unwilling to leave him. On the other hand, the seaman was in no default. He did not desert the brig, or abandon his duty. He did not violate his contract, which was for his voyage out and home ; he was prevented from performing _ the contract by a superior force ; by the officers and laws of the place where the vessel lay. Why 58 AUGUST SESSIONS, 1836. Brown v. The Independence. then should he suffer loss, or be deprived of the benefit of his contract? He was unable to do his duty, to perform the service, by no fault on his part. It is like the case of sickness, when the seaman is prevented, by the act of God, from per- forming his part of the contract, he nevertheless has his wages. In the case of Hart v. The Ship Little John (1 Pet. Adm. Decis., 115), the ship had delivered her cargo at Liverpool. On her return (the voyage was out and home), she was cap- tured by a French cruiser, who kept her for eight days, then recaptured by an English frigate, and restored on the pay- ment of salvage. The libellant was taken on board the French cruiser, carried to France, and there released. He was allowed his wages for the whole voyage, deducting the proportion of the salvage. The Judge says he grounded his opinion on cases like this on those of sailors falling sick, and on those cited by the libellant's counsel. In such cases, it is said, the wages are due, "because the mariner is not in fault," and the " default of the seaman is no more to be imputed to him than if he had fallen sick on the voyage, in which case his wages are due, without deduction." The Judge affirms the rule, and says, " it is clear that in case of sickness preventing a performance of duty, if the malady be not occasioned by the mariner's malconduct, that full wages are payable, whatever expense or loss the ship was under on this account," and adds: "I see no reasonable distinction between this case and that." The Judge undoubtedly says that his " opinion is founded on the general principle that where a mariner is prevented by force, when he is not in fault, from pursuing his voyage, he is to be paid his full wages," adding that "if, during the con- tinuance of the voyage, he earns wages in other service, they shall be deducted from his claim." In the affray between the mate and the libellant, the latter was in fault by his insolent language and deportment; but the mate was not less so in correcting him with an improper weapon. To strike a man on the head with a log of fire-wood, was to en- AUGUST SESSIONS, 1836. 59 Brown V. The Independence. danger his life, and the injury here was very severe. But, if the libellant was in fault, so as to justify the correction he re- ceived, I should not understand that the fault attends on him so as to be extended to the subsequent taking him on shore, without any complaint or application on his part, nor, so far as we know, with his acquiescence or consent. But I give no opinion on this point, as I am not prepared to say that the libellant had, justly or legally, drawn upon himself the kind of chastise- ment he received. Decree for the libellant fifty dollars and costs. DISTRICT COURT OF THE UNITED STATES. €Minn iistrtrt nf f juiisifliuiiiiii. NOVEMBER SESSIONS, 1836. THE UNITED STATES OF AMEEICA T. JOSEPH K. EVANS, WILLIAM YAEDLBY, AND JAMES NEVINS, AS- SIGNEES OE THE ESTATE OE JONAH AND GEOKGE THOMPSON. It seems that •where one of a partnership is indebted to the United States, and an assignment is executed of the joint and several property of the partners, the United States are not entitled to a preference over the joint creditors for the payment of such individual debt out of the assets of the partnership. Jonah Thompson being indebted to the United States as surety on sundry bonds of Samuel Thompson, given in the years 1825 and 1826, became an insolvent on the 7th May, 1827, and was released by the Secretary of the Treasury on the 13th December, 1832. (See United States v. Thompson, Gilpin, 615.) On the 25th May, 1827, Jonah and George Thompson, then, and for some time before, trading together, executed an assign- ment of their joint and several property. Certain joint assets came into the hands of the defendants, as assignees, and this suit was commenced to test the right of the United States to a pre- ference over the joint creditors for the payment of the indi- vidual debt of Jonah Thompson, on the bonds above stated, out of the joint assets of the partnership. NOVEMBER SESSIONS, 1836. 61 TTnited States v. Evans. On the 5th December, 1836, the case came on to be tried, before Judge Hopkinson and a special jury, and was argued by Gilpin, District Attorney, for the United States, and J. M. Read, for the defendants. Gilpin, for the United States. This case presents less a question of fact than of law. The affairs of the estate have been properly managed by the defen- dants ; and the question is whether the United States have a right to the assets now in the assignees' hands, in preference to other creditors, under the various laws on that subject. Act of 4th August, 1790, sect. 45, 1 Story's Laws, 147 ; Act of 3d March, 1797, sect. 5, 1 Story's Laws, 465 ; Act of 2d March, 1799, sect. 65, 1 Story's Laws, 630. Samuel and Jonah Thompson became indebted to the United States, the one as principal and the other as surety, on various custom-house bonds, amounting in all to $10,585 43, on which the interest up to the present date amounts to $5,346 11. On the 7th May, 1827, Jonah Thompson became insolvent. On the 25th May, Jonah and George Thompson made a voluntary assignment, for the benefit of their creditors, to William Sansom and others. A partnership then existed between these assignors, and Jonah Thompson also carried on business in his own name. The assignment was of the joint and separate property, to pay the partnership and the personal debts. The assignees, however, refused to accept this assignment, and on the 16th November, 1827, they as- signed over the property to the present defendants, on the same trusts. Under this assignment, a large sum of money passed into the defendants' hands. The gross amount received has been $81,678 25, and the claims thereupon which we admit are to be preferred to that of the United States are $70,920 08. This leaves the sum now in controversy at $10,758 17. To this last amount, under the laws which have been cited, we contend that the United States are entitled. 62 NOVEMBEE SESSIONS, 1836. United States v. Eyans. J. M. Read, for the defendants. If the United States are entitled to the money the defen- dants have received, we make no question as to where it came from, whether from the separate estate of Jonah Thompson, or the joint estate of both assignors. All the proceeds of the real estate of Jonah Thompson have been paid over to the United States, and there is no claim on that account. The personal estate of both assignors, received by the de- fendants, amounts to $140. And the whole of the sum now in question, with the trifling exception just mentioned, arose from the joint property. The question, then, is whether the United States, on bonds in which Jonah and George Thompson never appeared together, nor George Thompson at all, are to be paid out of the part- nership funds of those parties, in preference to partnership creditors. Partnership property is never liable to pay a separate debt until all the joint debts are paid. United States v. Ashley, 3 "Wash. C. C. R. 508 ; Tom v. Goodrich, 2 Johns. 213 ; The King V. Sanderson, 1 Wightwick, 50, S. C. 6 Cond. Exch. R. 443 ; United States v. Hack, 8 Peters, 271. Under an agreement of counsel that leave should be reserved to move to set the judgment aside, on the question of law, the Judge charged the jury as follows : The balance which is the subject of controversy, to wit, $10,758 17, arose from the sale of partnership property be- longing to the firm of George and Jonah Thompson. This partnership is insolvent, and its assets insufficient to pay the joint debts. The question, then, is whether the fund arising from part- nership property is to be applied to the debt of Jonah Thomp- son, one of the partners, in preference to the creditors of the partnership. I am of opinion that the United States are not entitled to NOYEMBER SESSIONS, 1836. 63 Shakerly v. Pedrick. this preference, and that your verdict should be for the defen- dants. Upon this charge a verdict was given for the defendants, and judgment nisi entered thereon. The United States sub- sequently paid the costs, and made no motion to set aside the judgment. BOBBRT M. SHAKERLY, MARINER, V. SILAS PEDRICK, LATE MASTER OF THE BRIG LATONA. If a seaman be left in a foreign hospital, sick, and, on his cure, rejoins the vessel, he is entitled to his wages at the rate originally contracted for, where no new contract is shown, and notwithstanding the master has complied with the requirements of the Act of 28th February, 1803. This was a libel for wages. It appeared that the libellant shipped on board the brig Latona, at Philadelphia, on the 23d November, 1834, for a voyage to Buenos Ayres and Montevideo, and back, at thir- teen dollars per month; that at Buenos Ayres he became sick, and was removed to the hospital ; that the captain paid to the consul there three months' wages, as required by the Act of 28th February, 1803, 2 Story's Laws, 883 ; that, on the libellant's being discharged from the hospital, cured, he rejoined the brig at Montevideo ; that he remained on board, doing his duty, till her arrival at Philadelphia, on the 20th May, 1835; and that, on demanding his wages, they were refused him, on the ground that his return to the brig was under a contract to work his passage home, in consideration of the money paid to the consul on his account. 64 NOVEMBEE SESSIONS, 1836. Greigg v. Eeade, This suit was an amicable action, entered by agreement filed on the 21st September, 1836. The case came on for a hearing on the 16th December, 1836, before Judge Hopkinson, and was argued by Grinnell, for libellant, and Clarkson, for respondent. No new contract was shown. On the 4th January, 1837, Judge Hopkinson decreed for the libellant the whole amount of wages demanded and costs. DAVID GREIGG V. JOHN H. READE. 1. Where a libel claims three hundred dollars damages, and a decree is given for the libellant for forty dollars, in which he acquiesces, the re- spondent cannot appeal to the Circuit Court. 2. Where a legal point arose, the counsel of one of the parties asked time for preparation to argue it, but, it appearing that such counsel had pre- vious notice that the point would then arise, the Court refused the appU- cation. 3. In an action for assault and battery, the respondent's counsel having addressed the Court, the case was submitted by the other side without reply, on the understanding that it should be immediately decided, and a decree was at once entered for the libellant. On the respondent's counsel moving for a new trial under these circumstances, on the ground of sur- prise, the Court refused the motion. This was a libel for assault and battery. The case came on to be heard, before Judge Hopkinson, on the 30th December, 1836. One witness was examined on the part of the libellant, and one deposition read on behalf of the respondent. No question of law was made by either party, nor was there any in the case. Mr. H. Hubbbll, counsel for the respondent, addressed the Court on the case as long as he NOVEMBER SESSIONS, 1836. 65 Greigg ». Eeade. thought proper. When the counsel for the libellant were about to proceed in reply, the Judge said that a very impor- tant case, appointed for that day, was waiting to be heard, and several counsel and parties attending for it : if, therefore, the counsel for the libellant in this case desired to be heard, they should have a full opportunity, but that the argument must be postponed until the next week. If, however, they would submit the case as it stood, it should be decided at once. The libellant's counsel, Messrs. Grinnell and McIlvainb, consulted, and agreed to submit the case as it stood. No objection was made to this proposition ; and the Judge then pronounced a decree giving the libellant forty dollars damages, — the amount claimed in the libel being three hundred dollars. The parties and their respective counsel then left the Court without further remark. On Monday, the 2d January, 1837, Mr. Hubbell wrote to the Judge that he desired to enter an appeal, but was informed by the Clerk that he could not do so without an order of the Court. The Judge replied that he would be in Court on the Wednesday following, when the application for an appeal might be made, and referred to Mr. Hubbell's consideration the Acts of Congress limiting the amount for which an appeal might be entertained. Act of 24th September, 1789, sects. 20, 21, 1 Story's Laws, 60 ; Act of 3d March, 1803, sect. 2, 2 Story's Laws, 915. On the 4th January, 1837, Mr. Hubbell appeared for the respondent, and Mr. Grinnell for the libellant. The re- spondent's counsel moved to enter an appeal, and the Court refused to allow it, on the ground that the decree was for a sum under fifty dollars, that the libellant acquiesced in it, and the application for an appeal was made by the respondent. It was, therefore, clear, in the opinion of the Court, that the matter then in dispute did not amount to fifty dollars, although the libel claimed damages to the amount of three hundred dollars. The respondent's counsel asked time to prepare to argue this question. It was objected that, having had previous 5 66 NOVEMBEK SESSIONS, 1836. Vandever v. Tilghman. notice of the point, the counsel should have come prepared to argue it ; and it was shown that notice had been given, both by the Judge's note, before mentioned, and by the libellant's counsel. The Judge referred the counsel of the respondent to the law as expressly declared by the Supreme Court in Cooke V. Woodrow, 5 Cranch, 14. A postponement was refused, and the Clerk ordered to enter on the record that the appeal was not allowed. The respondent's counsel then moved for a new trial, on the ground of surprise at the time of the decree, it not having been supposed that the Court was about to decide the case immediately. The Judge said that the intention to make an immediate decision had been distinctly announced; that the libellant's counsel had acted upon it ; and that the respondent's counsel had no reason to complain, as a full hearing had been given him. The motion for a new trial was overruled. PETER VANDEVEK BENJAMIN TILGHMAN, EXBCUTOK OS EDWARD TILGHMAN WHO WAS ASSIGNEE OF EDWARD TILGHMAN, JUNIOR. 1. Where a vessel is captured and condemned, wages are due the seamen up to the date of condemnation. 2. Where a vessel was condemned, by the French government, in 1808, and the representatives of the owner recovered a portion of their claim on that account, under the convention of 4th July, 1831, with France, the fund is liable for wages due the seamen, at the time of condemnation ; without deduction for the expenses of recovery, or abatement in the same propor- tion as the original claim. This was a suit for wages. It appeared that the libellant shipped, as mate, on board NOVEMBEK SESSIONS, 1836. 67 Vandever v. Tilghman. the schooner Hope, owned by Edward Tilghman, junior, on the 3d November, 1807, for a voyage from Philadelphia to Leghorn and back, at the rate of thirty-five dollars per month ; that, on the 18th January, 1808, the schooner, then being off Leghorn, was captured by a French cruiser, sent into Porto- venero, in the Gulf of Spezzia, and afterwards taken into Leg- horn ; that on the 7th September, 1808, the schooner was condemned by the Council of Prizes at Paris ; that, by an arrangement between the captors and the consignees, the schooner sailed from Leghorn on the 4th December, 1809 ; that, after trading for some time in the Mediterranean, she sailed for a port in Denmark ; that she was captured by an English cruiser and sent into London ; that the libellant re- mained on board, doing his duty, till this time ; that, while waiting adjudication of her case in London, the libellant made a voyage to the West Indies and back, in another service ; that the schooner was condemned by the English Court of Admi- ralty ; that the libellant worked his passage home, and arrived in Philadelphia on the 4th February, 1812 ; that on the 16th April, 1812, the libellant commenced suit, by summons, in this court, against Edward Tilghman, junior, for his wages ; that the suit was not proceeded in because of the insolvency of Ed- ward Tilghman, junior ; that Edward Tilghman, junior, assigned to Edward Tilghman, senior, among other things, his claim against the French government on account of the seizure and condemnation of the schooner ; that Edward Tilghman, senior, had since died, and that Benjamin Tilghman, the respondent, was his executor ; and that, under the convention of the 4th July, 1831, between the United States and France, the respon- dent had been awarded fifty-eight per cent, on eighteen thou- sand five hundred and forty-eight dollars, and that he had received thirty-nine and three hundred and seventy one-thou- sandths (39 1'o'y'ij) per cent, on account of this claim. The libel was filed on the 2d December, 1836; and the libellant stated his claim as follows : 68 NOVEMBEK SESSIONS, 1836. Vandever v. Tilghman. Wages from 3d November, 1807, to 4th December, 1809, ^875 Deduct credits (specifically enumerated), . . . 99 70 Due on 4th December, 1809, 775 30 Add wages from 4th Dec, 1809, to 4th Feb., 1812, $910 Less, wages earned from London to West Indies, 6 mo. at £4 10 ($20) per month, . . .120 790 Whole amount due on 4th Feb. 1812, . $1565 30 And interest from that date. The respondent denied his liability, and, also, the jurisdic- tion of the Court. On the 27th January, 1837, the case came on, for a hearing, before Judge HoPKiNSOisr, and was argued by Bayard, for libellant, and Rawle for respondent. Batard, for the libellant. Under Sheppard v. Taylor, et al. 5 Pet. R., 675, all that is left for this court to do, is to decide the amount of the wages due ; for that case settled 1. That this Court has jurisdiction. 2. That the sum awarded, by the commissioners, for the vessel and freight, is specifically liable for the wages of the seamen. 3. That the seamen have a lien, for their wages, upon this fund, into whosesoever hands it may come. 4. That the seamen are entitled to their wages for the whole voyage for which they shipped. 5. That the seamen are entitled to their^ whole wages, out of the fund in the hands of the assignee, so far as it goes, after deducting certain charges ; and the wages are not to be reduced pro rata according to the award, unless the whole amount of the award falls short of the whole amount of the wages. This last point is supported by Abbott on Shipping, Part V., chap. 2d, and 3d Kent Comm. 187, 188. In consideration of certain admissions made, by the respon- dent, for purposes of evidence, the libellant only claims for wages from the day of sailing from Philadelphia (8d November, NOVEMBER SESSIONS, 1836. 69 Vandever v. Tilghman. 1807), to the day of sailing from Leghorn (4th December, 1809), and an allowance of three months as a reasonable time to return home, sanctioned by the time occupied by the voyage out (two months sixteen days) ; by the provisions of the Act of 28th February, 1803 (2 Story's Laws, 883), § 3 ; by Emer- son V. Howland et al., 1 Mason, R. 45, 48 ; and by Pool v. Welsh, Gilpin R. 193, Rawle for respondent. The principle of the case in 5 Peters' R. 675 (Sheppard v. Taylor et al.), is that the fund is substituted for the vessel, and that seamen have the same rights against the one as against the other. Capture rescinds the contract for wages. Recapture or restoration revives it for the period during which seamen remained with the vessel up to condemnation. If they remain after condemnation, it is a new contract. Ab- bott on Shipping, 459, 463 ; Oxnard v. Dean, 10 Mass. R. 143 ; Witmore v. Henshaw, 12 Johns R. 324, 333 ; The Sara- toga, 2 Gallis. 164; Powell v. The Betsey, 2 P. A. Brown's R. 335, 347. The libellant was entitled to wages up to condemnation, as follows : Wages from 3d November, 1807, to 7th Sept., 1808, . $354 66 Less, credits (specifically enumerated), . . . 99 70 Amount due on 7th September, 1808, . . $254 96 But 1. This should be reduced in the same proportion as the respondent's claim. That is, the libellant should receive fifty- eight per cent, of two hundred and fifty-four dollars and ninety- six cents. 2. He should bear his proportion of the expenses of collec- tion, which are twenty-five per cent. 5 Peters' R. 716, 717. 3. The respondent having actually received only thirty-nine 70 NOVEMBEK SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. and three hundred and seventy one-thousandths (39y^''j)Ojj) per cent, of the whole claim, the libellant should only receive that proportion of his claim now. These three principles will reduce the amount to be given to the libellant, at present, to seventy-four dollars and fifty-eight cents. ^ On the 30th January, 1837, Judge Hopkinson delivered the following opinion in the case : The libellant is entitled to wages to the time of condemna- tion, deducting the credits allowed in his claim, but without deduction on account of the expenses of recovery. Deceeb for libellant for two hundred and fifty-four dollars and ninety-five cents, and costs. 1. The effect of a supersedeas, lawfully ordered, is to annihilate a commission of bankruptcy, and to place the bankrupt with his estate and effects in the same situation they would have been in had it never existed. 2. In England, the Chancellor's authority, in bankruptcy, is without any pre- cise boundaries, and is exercised on very broad and general principles, for the purposes of justice and the protection of parties. 3. In England, the authority of Chancery, in bankruptcy, is derived from the bankrupt laws, either by express grant or by construction or implication, and not from the general power of the Chancellor. 4. A District Judge of the United States has power to supersede a commis- sion of bankruptcy, by construction or implication from the bankrupt law of the 4th April, 1800 (1st Story's Laws, 732), and without the express grant of such power therein. 5. It cannot be inferred from Luoas v. Morris (1st Paine's R., 396), that the District Judges possess no powers, under the bankrupt law, that are not expressly given to them. 6. Neither the English Chancellor nor a District Judge of the United States has any jurisdiction, in bankruptcy, virtute officiorum, but only from the statutes. NOVEMBEK SESSIONS, 1836. 71 Robert Morris's Estate, in Bankruptcy. 7. A supersedeas may be issued after a bankrupt has obtained his certificate. 8. A decree, rightfully and deliberately made, and long acquiesced in by all parties interested, -will not be revoked unless it be clearly shown that justice requires it. 9. The commissioners of a bankrupt's estate cannot allow a judgment debt, which has slept for thirty years, to be proved before them, unaccompanied by sufficient reasons for the neglect to prosecute it. 10. The presumption of payment from lapse of time may be rebutted by cir- cumstances which are for the consideration of a jury ; but when a peti- tioner seeks to have a supersedeas of a commission of bankruptcy revoked, in order to allow him to prove debts against which there is a prim& facie presumption of payment, he must satisfy the Court that he has a fair and reasonable expectation of rebutting the presumption, if the opportu- nity is afforded him. 11. What effect the bankruptcy and death of a party will have to prevent the barring, by lapse of time, of a judgment against him, is a question of law for the Court to decide ; as, also, the difference between a bond and a judgment with reference to the presumption of payment arising from lapse of time. 12. The fact that any interest, however small, will profit thereby, is not sufficient ground to revoke a decree ; the preponderance of equity on the whole case will be looked to. 13. There is nothing unusual, illegal, or improper, in the lon&fide assignee of a judgment becoming the purchaser, at sheriff's sale thereon ; or in his giving a credit on the judgment for the amount of the purchase-money. Neither is it illegal in such a holder of a judgment to purchase, in his own name, but for the use of the representatives of the original defendant, a portion of the property sold. 14. An order of supersedeas will annul a commission of bankruptcy without a formal writ being issued. 15. The fact of certain creditors of a bankrupt residing in the city where the legal proceedings are had, does not entitle them to any more special notice of the various steps taken than those who live at a distance. The only notice required is by Gazette. 16. E. M., a certified bankrupt, died during the continuance of the commis- sion, having first devised to his wife all his property, real or personal, which he then possessed or might afterwards acquire. Subsequently, M. M., the wife, died, having first devised all her estate, real and personal, to N., a daughter, and making H. M., a son, her executor. Keal property of B. M. being afterwards discovered, H. M. had sufficient interest therein to entitle him to petition for, and obtain, a supersedeas of the commission. 17. It is doubtful whether a certified bankrupt, pending the commission, has such a possibility coupled with an interest in property discovered after his death, as will enable such property to pass under a general devise by him. 18. Where a petitioner, subsequently to filing his petition, acquires a new 72 NOVEMBEE SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. right, which is matter of record, and does not affect the merits of the con- troversy, and the opposing parties do not, within a reasonable time, object to his original right, or require him to show that subsequently acquired, they lose their ability so to obj eot or require. 19. The bankrupt law (of 4th April, 1800, 1st Story's Laws, 732), requires extraordinary promptness on the part of the creditors to bring the pro- ceedings to a close, and countenances no neglect or delay. On the 28th July, 1801, a commission of bankruptcy, under the Act of 4th April, 1800 (1st Story's Laws, 732), was issued from the District Court for the District of Pennsylvania, against Robert Morris ; after various preliminary proceedings, and the proof of sundry debts, amounting in the whole to about three millions of dollars, the commissioners executed an assign- ment to John R. Smith, John Craig, and Nathan Field, on the 8th December, 1801, they having been elected assignees by the creditors. All proceedings then ceased, and, up to the year 1825, no action of any kind was taken in the matter. On the 21st November, 1825, Henry Morris, a son of Robert Morris, petitioned Judge Peters, the then District Judge, to vacate and supersede the commission of bankruptcy ; stating that Robert Morris was then dead ; that the large estate left by him was being wasted and misapplied by means of the ne- glect of the creditors and assignees ; and that it was no benefit either to the creditors or to the bankrupt and his heirs. A rule to show cause was granted on this petition, returnable on the 26th December, 1825, and the time subsequently enlarged to the 13th January, 1826. But the petition was then no fur- ther prosecuted. On the 15th January, 1830, the application was renewed, on behalf of Henry Morris, to Judge Hopkinson, who had suc- ceeded Judge Peters. Williams, for the petitioner. The power of acting under the bankrupt law is given to the Judge, and not to the Court. Act of 4th April, 1800 (1 Story's Laws, 732), sects. 2, 3, 14, 19, 28 ; Lucas v. Morris, NOVEMBEE SESSIONS, 1836. 73 Rotert Morris's Estate, in Bankruptcy. 1 Paine's R. 396. And this power remains under the repealing act. Act of 19th December, 1803 (2 Story's Laws, 909) ; Lucas V. Morris, 1 Paine's R. 396. There is no fixed rule in England or the United States as to the causes of superseding a commission of bankruptcy : it is an application to discretion. We do not mean to say that the District Judge has in all cases the same power with the Chancellor, but that he has in the case of a supersedeas. The commission of bankruptcy is consi- dered, in England, as a species of execution, and, therefore, under the direction and' control of the court by the authority of which it is issued. 2 Madd. 608, 609 ; Ex parte Poole, cited 2 Madd. 616 ; Mx parte Donovan, 15 Ves. 8. After the length of time which has elapsed without any action on the part of the creditors, we are justified in supposing that they have aban- doned the commission, or consented to its being superseded. Ex parte Duckworth, 16 Ves. 416 ; and see, also. Ex parte Proudfoot, 1 Atkyns, 252 ; Ex parte Lees, 16 Ves. 472 ; Trough- ton V. Gitley, Ambler, 630 ; Ex parte "Wood, 1 Atkyns, 221 ; Ex parte Lavender, 18 Ves. 18. No counsel appeared to oppose the petition. On the 22d January, 1830, Judge Hopkinson ordered that special notice of the application should be given to John H. Huston, the petitioning creditor ; and a public notice, in the Gazette, to all creditors of the bankrupt, that the Judge would proceed to hear and decide upon the petition on the 19th February. On that day proof was made that the notices, respectively, had been given in conformity with the order. The application then rested till the 17th September, 1830 ; and, on that day, no opposition having been made, it was ordered, "that the commission issued in the case be vacated and superseded, ac- cording to the prayer of the petitioner." In March, 1791, a judgment was obtained by Joshua B. 74 NOVEMBER SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. Bond against Kobert Morris, and a testatum fi. fa. was issued thereon on the 1st February, 1798. Mr. Bond having died, his administrator issued a scire facias, to the use of William Rawle, against the representatives of Robert Morris, on the 1st April, 1830 ; on the 6th December, 1830, judgment was confessed on the sci. fa. by the attorney of Robert Morris's representatives ; a fieri facias was then issued and levied on certain lands, now in Schuylkill County, which were sold in October, 1831, under a venditione exponas to William Rawle, Jr., Esq., for $5,100. On the 8th December, 1836, a petition was filed by William Sansom, praying that the supersedeas might be revoked. The petitioner set forth, that he was a creditor of Robert Morris, by a judgment, upon which there was due the sum of $9,484 12, with interest from the 23d December, 1805, and also by another judgment, obtained by John Dunwoody, for a large amount. He recited the commission of bankruptcy against Mr. Morris, and his certificate of discharge, and said that he had learned that a supersedeas had lately been granted, but that he had not been able to learn upon whose application, or upon what grounds. He represented that no notice was given to him, or, as far as he could learn, to any other creditor, of the applica- tion for the supersedeas ; that he had a considerable interest in proceeding under the commission ; and that he was advised, that if the power existed to take it away, it could not be exer- cised without due notice, and an opportunity to be heard. The affidavit verified the petition, particularly as Jo his having had no notice of the application for the supersedeas. The case came on to be heard on the 30th December, 1836, before Judge Hopkinson, and was argued by Wharton for the petitioner; and by Williams, who appeared for Henry Morris; Tilghman, who appeared for Wm. Rawle, Jr., Esq.; and J. S. Smith, who appeared for the representatives of Robert Morris, against the petition. NOVEMBER SESSIONS, 1836. 75 Robert Morris's Estate, in Bankruptcy. Wharton, for the petition. There is no honafide purchaser without notice, who has paid money for his purchase, whose rights will be affected by grant- ing the prayer of the petitioner ; but, if there was such a pur- chaser, as the proceeding of supersedeas was without the juris- diction of the Judge, the purchaser is not entitled to the same protection as if he had purchased under a judgment in a court of law, of which all must take notice. It may be urged that the petitioner is not entitled to be heard, because the debt on which he claims is to be presumed to be paid, on account of the time which has elapsed since it was last prosecuted. It is true that after a certain period of time payment will be presumed on bonds, judgments, &c., but this is not a presumption overruling all objection, like that of cases within the statutes of limitation ; it arises from circum- stances, and may be repelled by other circumstances; and whether it is or is not so repelled is a matter for a jury to de- cide. 2d Stark. Ev. 270, 824 ; Foulke v. Brown, 2d Watts' R. 209, 215; Summerville v. Holliday, 1st Watts' R. 607; Nickle V. M'Farlane, 3d Watts', 165. And in this case the payment or non-payment is a question of fact for a jury under the 52d and 58th sections of the act of 4th April, 1800 (1st Story's Laws, 732). The petitioner has four reasons to urge against the presumption ; — the bankruptcy of Mr. Morris ; his death ; the difference between a judgment and a bond, non- payment of interest on a bond being strong ground for pre- suming the principal to have been paid ; and the fact of the existence of property in Schuylkill County being unknown till recently. It may also be objected that the petitioner never proved his debt under the commission, but the objection is of no weight, as a creditor may prove at any time. Archb. on Bankruptcy (5th ed.), 124. We deny that such authority as is here claimed is vested in any judge exercising the powers given by the bankrupt law. All the power of this Court, in bankruptcy, is derived either 76 NOVEMBER SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. from tlie Act of Congress, or, by necessary inference, from the English system. The moment the party was declared a bank- rupt the power to issue a supersedeas was lost, and there is no hint in the Act of any such authority as has been here exer- cised, to deprive the commissioners of the property vested in them. Act of 4th April, 1800 (1st Story's Laws, 732), sects. 3, 5, 8, 10, 11, 36, 45; Act of 19th December, 1803 (2d Story's Laws, 909). There is not a syllable of authority in England or America to supersede the commission, under such circumstances, after the certificate of discharge. A bankrupt law is to be construed more favorably to a creditor than an insolvent law, yet there is no supersedeas under the insolvent law. Power v. Hollman, 2d Watts' R. 218.' The District Judge has not the same power to supersede as the English Chancellor. Lucas v. Morris, 1 Paine's R. 369. The refusal of the assignees to act did not revest the pro- perty in the bankrupt, but it remained in the commissioners. Willis V. Row, 3 Yeates, 520 ; Gray v. Hill, 10 Serg. & Raw. 436; Wickersham v. Nicholson, 14 Serg. & Raw. 118; Cook- son V. Turner, 2 Binn. 453. There can be no equity shown for issuing the supersedeas ; and the petition of Henry Morris for that purpose, together with the reasons assigned in it, is totally unprecedented. ' Williams, against the petition. The property is not vested in the commissioners, but re- mains in the bankrupt until the assignment. Doe d. Esdaile V. Mitchell, 2 Maule & Selw. 446 ; Carleton v. Leighton, 3 Meriv. 667, 672. There never has been any assignment; the instrument remained with the clerk of the commissioners, and the property with the bankrupt. It would be inequitable to revoke the supersedeas now, when third parties have acted on the rights it gave them. By the Court.— If the property remained vested in the bankrupt and his heirs, how could the supersedeas affect it; or NOVEMBER SESSIONS, 1836. 77 Eobert Morris's Estate, in Bankruptcy. affect those wlio had acquired a right to it, under him or his heirs ? Williams. — Although the legal estate was in the bankrupt, the beneficial interest was in his creditors, and would pass to the assignees when duly appointed and accepting. It is now as much too late for this application as it is for a writ of error or a bill of revivor in the matter. The San Pedro, 2 Wheat. 132, 137 ; 9 Peters, Appendix, 771, 782 ; JEx parte Roffey, 19 Ves. 468. And Mr. Sansom, being neither a party nor a privy, has no right to make it. The debt on which the application is founded is barred by lapse of time, and could be resisted before a commission. Diamer v. Sechrist, 1 Penna. R. 420 ; Power v. Hollman, 2 Watts, 218 ; Dewd- ney's Case, 15 Ves. 479 ; Cope v. Humphreys, 14 Serg. & Raw. 15 ; Nickle v. M'Farlane, 3 Watts, 167 ; Griles v. Bare- more, 5 John. Ch. R. 545. As Mr. Sansom did not prove under the commission, he had no right whatever to any kind of notice. I]x -parte Smith, Archbold, 257 ; Alderman Backwell's case, 1 Vern. 208 ; Ex parte Duckworth, 16 Ves. 416. The Supreme Court having adopted the English Chancery rules, in the absence of others, the District Judge should carry Acts of Congress into effect on the same rule and principle. Supposing Mr. Sansom had a right to be heard, has the Judge exceeded his power in granting the supersedeas ? If such a power did not exist, the difficulties would have been in- surmountable, in the numerous cases and circumstances which ■ would have arisen under the Act, had it remained in force. In almost every case under the law, the District Judge is put in the place of a Chancellor with the same power that he has in bankruptcy, at least as to all powers necessary to carry the Act into effect. A commisssion of bankruptcy is called here, as in England, a species of execution ; and the authority which issues an execution has control over it and superintends it. No statute in England gave power to the Chancellor to supersede a commission till the reign of William IV. ; it has always been 78 NOVEMBER SESSIONS, 1836. Rotert Morris's Estate, in Bankruptcy. an incidental power of the authority issuing the commission. Ex parte Freeman, 1 Ves. & Bea. 40, 41 ; ex parte Mathew, 3 Atk. 817. All the books on bankruptcy show that the power to supersede a commission has never been doubted as an inci- dental power. When Congress passed this Act, they must have known of the construction which carried this power with it, and, using the same language, must have intended to allow the same construction. Lucas v. Morris (1st Paine's R. 396), decides that the Dis- trict Judge has not all the powers of the Chancellor : to this we agree, but we contend that he has all the ordinary powers; he is continually exercising them ; the petitioner himself asks an issue in this case, when an issue is only specifically allowed in three cases under the Act of 4th April, 1800 (1st Story's Laws, 732), sects. 3, 28, 52 ; and the petition does not come within one of the cases where an issue is allowed. Granting an issue, a supersedeas, or a bill of review, is an ordinary exer- cise of chancery power by the District Judge, without express authority. There never has been a system of bankruptcy without a power of superseding, and, if it is not in the District Judge, where is it ? If there is no power of superseding the commission, the estate may be wasted and mismanaged to the end of time without any remedy. It is objected that, even if the Judge has the power, the fact of the bankrupt having obtained his certificate should have pre- vented the issuing a supersedeas. We can show cases where a supersedeas has been granted in England after certificate ; and, as the objection concedes the power, this becomes merely ■ a question of expediency. 2 Madd. 616 ; Ex parte Poole, 2 Cox., Ch. Cas. 227 ; Ex -parte Moule, 14 Ves. 602. ' If the object of the commission has not been and cannot be answered, like an execution, it will not be permitted to stand. The debts originally proved against Mr. Morris amounted to three millions of dollars, but, by the neglect of the commission, they amount at this time to nine millions ; a great injustice to the bankrupt, and an end very different from that intended to NOVEMBEE SESSIONS, 1836. 79 Robert Morris's Estate, in Bankruptcy. be reached by the appointment of the commissioners. Laches alone is a sufficient ground for superseding a commission. Ux parte Proudfoot, 1 Atk. 252 ; Ux parte Lees, 16 Ves. 472; Troughton v. Gitley, Ambler, 630. And commissions have been superseded for the benefit of the bankrupt. Ux parte Wood, 1 Atk. 221 ; Ux parte Lavender, 18 Ves. 18. TiLGHMAN, on the same side. Mr. Sansom must be considered as having been present at the time of the application of Henry Morris, and as not object- ing -when the supersedeas was granted, for the -whole system of notice in bankruptcy, both here and in England, is such as was followed by the Judge. Notice in the Gazette is all that is required. The same sort of notice is given to creditors who have judgment or mortgage on land sold by the sheriff; if they do not come in on that notice they lose their priority, as is also the rule in the Orphan's Court. Mr. Rawle has acquired rights on the faith of the supersedeas, and we protest against its va- lidity being questioned now, especially by a person in Mr. Sansom's position ; Cope v. Humphreys, 14 Serg. & Eaw. 15. If no supersedeas had been ordered, the commission of bank- ruptcy, being but a statutory execution, and no proceedings having been had under it for so long a time, this torpidity would divest the commissioners and assignees of the property, and the commission with all rights under it would expire by the lapse of time. The heirs of Mr. Morris could have recovered their lands in England had there been no supersedeas. Mr. Sansom and all the other creditors are to be presumed to have been paid, from the lapse of time, and payment is a sufficient ground for supersedeas in all cases. The Act of 4th April, 1800 (1 Story's Laws, 732), using the same words, must have been intended to give the same powers as the English statute. J. S. Smith on the same side. This petition is unprecedented and anomalous : it is an appli- cation to a Judge to reverse his own decree because he 80 NOVEMBEE SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. no power to make it. If the Judge had no power to order the supersedeas, it is void, the commission still exists, and this ap- plication is unnecessary. All powers given to the Judge by the bankrupt law are of a judicial character. The power to issue the commission is con- fined to a judicial ofiBcer, and judicial power to issue implies power to control, refuse, or supersede the commission, for it is in the nature of an execution ; and when power is given to a judicial person to issue an execution, it is an incident to the power that he may set the execution aside. The power of the Chancellor under Stat. 13th Eliz., ch. 7, § 2, is given to him in the same words as the power given to the Judge by the Act of 4th April, 1800, § 2 (1 Story's Laws, 733). There is no power to supersede given to the Chancellor by the English Acts which is not given to the Judge by our Act. The English statutes give an express power to supersede in but two cases ; Stat. 5 Geo. II., ch. 30, § 24 ; Act of 4th April, 1800, §§ 3, 28 (1 Story's Laws, 733, 741). The Chancellor has no power in bankruptcy but what is derived from the Acts of Parliament, and when he supersedes, it is by virtue of the discretionary or incidental power given to him by those Acts, in other cases than are therein expressly mentioned ; 2 Madd. Ch. 609 ; Ex parte Freeman, 1 Ves. & Bea. 40 ; Hx parte Lund, 6 Ves. 782 ; Phillips V. Shaw, 8 Ves. 250. If the Judge can supersede only in the cases specially mentioned, the commission might be perpetual, though fraudulent or collusive, and though all parties consented to the supersedeas, or the debts had been all paid. Very many judicial powers are given by the statute and ex- ercised by the Judge ; Act of 4th April, 1800 (1 Story's Laws, 732), §§ 2, 3, 19, 36, 47, 51, 52; United States v. Lawrence, 3 Dallas, 42. It can only be inferred from Lucas v. Morris (1 Paine's R. 396), that the District Judge has not exclusive jurisdiction over the entire execution of the bankrupt law, as the Chancellor has in England; and the only point positively decided by the case was that the Judge could not call the as- signees to account; see Ex parte Cowan, 3 Barn. & Aid, 123. NOVEMBEK SESSIONS, 1836. 81 Kobert Morris's Estate, in Bankruptcy. If the District Judge acts judicially in bankruptcy, and the Chancellor has no greater power under the Acts of Parliament than the Judge under the Act of Congress ; we may take the acts of the Chancellor as a precedent. The power of the Chan- cellor to grant a supersedeas appears to he conceded, except where a certificate has been issued. But a supersedeas has been granted after certificate ; JEx parte Poole, 2 Cox, Ch. Cas. 226 ; Ex parte Moule, 14 Ves. 602. Where it has been refused after certificate, it has been for the benefit of the bankrupt, in order that, after conforming to the law, he shall not be exposed to the effect of his debts by superseding the commission and all that has been done under it ; Ex parte Leaverland, 1 Atk. 145. If the Judge has power to supersede, and has superseded, why should he now revoke it ? The whole argument and in- quiry now is as to the effect of the supersedeas upon certain lands in Schuylkill County, since purchased by a third party. Mr. Sansom has no right to ask that the supersedeas shall be revoked merely to let him in to prove his debt after he has had nearly thirty years to come in and has not done so, although living in the city where the commission sat. His interest in the property now discovered is but one-ninth of one per cent.; so trifling a proportion that it cannot be supposed he will seriously prosecute his claim, even if the commission should be reopened. The petitioner denies the Judge authority to order a super- sedeas, but asks him for a procedendo, when both powers must come from the same source. If a procedendo should be ordered, justice requires that it should be upon terms, so as not to affect rights acquired under the supersedeas. Whaeton, in reply. We deny that the Judge had power to grant the supersedeas. Jurisdiction and power have different meanings : the first has- a general scope or bearing, the second is something that exists within the first. A general jurisdiction implies the power ne- 6 82 NOVEMBER SESSIONS, 1836. Koljert Morris's Estate, in Bankruptcy. cessary to execute it. If the Judge had general jurisdiction in bankruptcy, all general powers would exist within that sphere ; but if the jurisdiction is given by statute, and is limited, then no power can be implied. In England there is no statute giving power to the Chancellor ; the first rise of his authority is un- known, but it is now as large as the whole broad and sweeping Chancery jurisdiction, and of it his authority in bankruptcy is part ; Wright v. Simpson, 6 Ves. 732 ; Eden, 449, citing 14 Ves. 4.51, Anon. The English bankrupt laws are framed with a view to the authority of the Chancellor in the exercise of his ordinary jurisdiction ; Mx parte Bradley, 1 RoUe's R. 202. But no such power or jurisdiction is given to the District Judge ; the District Court has no equity jurisdiction but in granting injunctions. By the Court. — In the cases in 14 Ves. and RoUe, just cited, the Chancellor did not claim the power he then exercised by virtue of his chancery jurisdiction, but by the interpretation and construction of the statutes of bankruptcy. He derives all his authority from the statutes and the inferences from them. Wharton. — By confiding the execution of the bankrupt laws to the Chancellor it was a reasonable inference that it was intended he might use his powers as Chancellor to carry the laws into effect. But if the execution of the statutes had been confided to a common law Judge, no such inference could have been drawn. The District Judge here has no such powers as the Chancellor, and, of course, the Act of Congress in referring to the District Judge, intended only to let him exercise the powers in bankruptcy that he had in his ordinary jurisdiction; Lucas V. Morris, 1 Paine's R. 397. It is true that the Judge has certain judicial powers under the bankrupt law, but they are limited, and cannot be extended beyond those limits. Even if the power of the District Judge is commensurate with that of the Chancellor, the Chancellor himself is without power to grant a supersedeas in a case like the present. The fact of its being without precedent in the innumerable English bankruptcy cases is proof that the power does not exist. The Chancellor NOYEMBBR SESSIONS, 1836. 83 Robert Morris's Estate, in Bankruptcy. Tvould require tlie express affirmative consent of the creditors, both those who had proved and those who had not, before he would supersede a commission; 1 Montag. Dig. B. L. 366, 369. The assent is assumed here, but such consent can only be shown by a writing signed by the creditors, and praying for the supersedeas. And consent cannot be implied from the mere fact of publication ; 2 Montag. 313. The real ground assigned for the supersedeas is not the consent, but the neglect, of the creditors. A totally unprecedented ground. It is contended that the legal interest has never been out of the bankrupt ; but our law is different in this respect from that of England ; Stats. 34 and 35, Henry VIII., ch. 4, sec. 1 ; 13 Eliz., ch. 7, sec. 2 ; 5 Geo. II., ch. 30, sec. 37 ; Act of 4th April, 1800 (1 Story's Laws, 732), sees. 5, 50. Both the legal and beneficial interests were in the commissioners, so continued if the assignees did not accept, and so continue, unless — incon- sistently with law — they have been divested thereof by the supersedeas. It is not too late to make this application, as a bill of review will lie at any time within twenty years ; 2 Smith Pr. 50. It is alleged that there is a purchaser for a valuable conside- ration, on the faith of the supersedeas. The person claiming this position should show affirmatively that he has actually paid a valuable consideration in money, it not being sufficient if the judgment creditor has allowed a credit on the judgment for the amount of the purchase-money ; and the party claiming as an innocent purchaser should also show that he had no connexion with the petition for a supersedeas, and that he was ignorant of its invalidity ; Harrison v. Southcote, 1 Atk. 538 ; Hard- ingham v. Nichols, 3 Atk. 304. On the 3d February, 1837, Judge Hopkinson delivered the following opinion on the petition : On the 28th day of July, 1801, a commission of bankruptcy was issued by the District Judge for the Pennsylvania District, against Robert Morris, directed to John Hallowell, Joseph Hopkinson, and Thomas Cumpston, Commissioners. The bank- 84 NOVEMBER SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. rupt being duly summoned, surrendered himself to the commis- sioners, and submitted himself to be examined ; the commis- sioners having previously declared the said Robert Morris a bankrupt. On the 6th day of August the commissioners re- ceived proof of sundry debts. On the 26th of August proof of debts was received from about twenty-one creditors : and the choice of assignees postponed until the 12th day of September. On that day further proofs of debt were received from nearly forty of the creditors of the bankrupt. At several subse- quent meetings of the commissioners proofs of debts were con- tinued to be received, amounting in the whole to upwards of ninety, and whose aggregate amount of debt was about three millions of dollars. On the 8th day of December, 1801, the commissioners executed an assignment of all the estate and effects of the bankrupt to John R. Smith, Esquire, and John Craig, and Nathan Field, Merchants, they being the assignees chosen by the creditors. Here the proceedings by and before the commissioners stop. The assignment still remains among the papers of the commission, never having been accepted by the assignees, nor any counterpart executed by them. No attetapts were made by or on the part of the creditors to call upon the assignees to execute the trust, nor to have other as- signees appointed to supply their place and take charge of the estate and effects of the bankrupt. It may be here remarked that the petitioner now before me made no proof of his debt before the commissioners, or took any part in the proceedings under the commission. The estate and effects of the bankrupt, whatever they were, were thus abandoned by the creditors ; not only by those who had proved their debts, and neglected or de- clined to use the rights they had under the commission, but by those also who by not proving, exhibited even more indifference to his affairs. It cannot be believed, indeed it is not pretended that the petitioner, being in the city where these proceedings were going on, was not acquainted with them. At all events, he had the notice which the law required, and which was given to the creditors of the bankrupt generally. NOVBMBEE SESSIONS, 1836. 85 Robert Morris's Estate, in Bankruptcy. Things remained in this situation, in a state of absolute in- action, and without any symptom of a revival, until the month of November, 1825, that is twenty-four years, within a few days. In the mean time, that is, in the month of , 1806, Robert Morris, the bankrupt, died. On the 21st day of November, 1825, Henry Morris, one of the children of Robert Morris, presented his petition to the Honorable Richard Peters, then Judge of the District Court of the United States, for this district, the same who had issued the commission, in which he recites the proceedings under the commission, and alleges that the assignees do not appear ever to have accepted the trust : nor have they executed any counterpart of the assignment ; nor has there been, as he believes, anything further done in the premises. He states that the said Robert Morris, died in 1807 (1806), leaving a widow and five children, whereof the petitioner is one. He then alleges and sets forth, " That at the time of the said bankruptcy, the said Robert Morris was seized and possessed of a large estate, i-eal and personal, which, in consequence of the neglect of the said creditors and assignees, in not duly prosecuting the said commission, has been wasted and misapplied, without benefit to the creditors or to the bank- rupt." This allegation has not been disproved, nor as I recol- lect, denied to be true, from that time to the present. It is the ground and reason on which the petitioner, Henry Morris, prayed the District Judge " that the said commission of bank- ruptcy may be vacated and superseded." This petition, as appears by an endorsement on it, was read, filed, and a rule granted to show cause, &c., returnable on 26th December, 1825. On that day the rule was enlarged till 13th January, 1826. No further proceeding was then had, for reasons which do not appear, nor does it appear to whom the rule to show cause was directed, nor that any service of it was made. On the 15th of January, 1830, the application on behalf of Henry Morris, was renewed to me ; and Mr. Williams was heard as the counsel for the petitioner. No counsel appeared 86 NOVEMBER SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. to oppose it. On the 22d of the same month, I ordered, that notice of the application be specially given to John H. Huston, the petitioning creditor ; and a public notice, in the National Gazette, three times a week for two weeks, to all the creditors of the bankrupt, that the judge will proceed to hear and de- cide upon the petition on Friday, the 19th of February, 1830. On that day proof was given that the notices, respectively, had been given in conformity with the order. The application then rested until the 17th of the following September, during the whole of which time it cannot be doubted, that any application or argument, in opposition to the petition, would have been attended to. On the 17th of September, no opposition being made, either by the creditors who had proved under the com- mission, or by any other person claiming to be a, creditor, or to have any right or interest in the estate of the bankrupt — the order was made " That the commission issued in the case be vacated, and superseded, according to the prayer of the petitioner." How far these proceedings were known to the creditors of Mr. Morris by the public notice given to them, I cannot say ; Mr. Sansom, in a way which has not been satisfactory to the opposite counsel, has denied a knowledge of them, or rather as they say, that he had notice of them ; perhaps this criticism is rather too close and verbal, as it would involve Mr. Sansom in an equivocation equal to an untruth, under his solemn affir- mation, which ought not to be imputed to him, without a more satisfactory demonstration-. The proceeding on the petition of Henry Morris, was not hurried. It was pending nearly five years. If in that time it was known to Mr. Sansom or any other of the creditors of Robert Morris, it was also known to them in law if not in fact, for the petition was open to them, that the application for the supersedeas was made on the ground that Robert Morris was possessed of a large estate, which in conse- quence of the neglect of the creditors and assignees, was wasted and misapplied ; and it was also clearly understood, for other- wise the supersedeas would be fruitless, that something re- NOVEMBER SESSIONS, 1836. 87 Kobert Morris's Estate, in Bankruptcy. mained to be redeemed from the neglect by ■vrh.ich so much had been lost, and which, if redeemed, would enure to the benefit of the creditors, if they would look after it ; or to the family of Mr. Morris, if the creditors by abandoning it would suffer it to return to the representatives of the bankrupt, by super- seding the commission. The effect of the supersedeas, if lawfully ordered, was to annihilate the commission, and to place the bankrupt with his estate and effects in the same situation they would have been in, had it never existed. He, or, in this case, his representa- tives, were fully restored to all their rights over his property, and resumed the management, control, and disposition of it. So they remained, unquestioned and undisturbed, until the 8th day of December, 1836 — a period of more than six years. On that day the petition of William Sansom was filed, followed by his affidavit, on the 15th of the same month. The petitioner states that he was a creditor of R. Morris, by a judgment, upon which there are due the sum of $9,484 12, with interest from the 23d of December, 1805 ; and also by another judg- ment obtained by John Dunwoody, for a large amount. He sets out the commission of bankruptcy against Mr. Morris, and his certificate of discharge : says that he has learned that a supersedeas has lately been granted, but has not been able to learn upon whose application, or upon what grounds. He re- presents that no notice was given to him, or, as far as he can learn, to any other creditor, of the application for the supersedeas : that he has a considerable interest in proceeding under the com- mission, and is advised, that if the power exists to take it away, it cannot be exercised without due notice, and an opportunity to be heard : he therefore prays for a review of the proceed- ings, in reference to the alleged supersedeas, and that he may be heard by counsel in opposition to it. The affidavit verifies the petition, particularly as to his having no notice of the application for the supersedeas. I cannot forbear to remark that some of the allegations in this petition are rather singular, without meaning to say that they will have any weight in de- NOVEMBER SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. ciding upon it. The petitioner says, that although he has learned that a supersedeas has lately (six years before) been granted — he has not been able to learn upon vrhose application, nor upon what grounds it was done. He has not informed us how he learned that the supersedeas was granted, nor what means he took, after he was informed of it, to discover who was the applicant for it, or the grounds upon which it was granted. Certainly in the same office where he filed his petition, the petition of Henry Morris was filed six years before, and there remained, and that petition shows the ground of the applica- tion. The proceedings of the judge upon that application were filed in the same place, and were equally accessible to Mr. Sansom. It is true that he does not aver that he took any step or measure to obtain this information, unless such an aver- ment may be inferred from his declaration that he had not been able to obtain it. The petitioner, as the ground, and, I may say, the only legal ground of his application to revoke the supersedeas, and restore the commission, alleges, "that he has a considerable interest in proceeding under the commis- sion." It cannot be overlooked, that his interest in the com- mission was so inconsiderable in his own estimation, that although living in the city in which the commissioners sat, and where from time to time the creditors of the bankrupt were appearing and proving their debts, he never, for thirty years, during the pendency of the commission, thought it worth his while to give half an hour to the proof of his debt, or to the interest he had in the commission. How far an interest has since arisen which can assist him in this application, will be a subject of future consideration. At present I refer to these circumstances, not as impairing his legal rights, but as affect- ing his equity, if he shall be thrown upon that to support him- self. This case is altogether one of the first impression here, and, in some of its features and aspects, without precedent in Eng- land, where so many volumes have been published upon their bankrupt laws. The counsel engaged in the argument on both NOVEMBEK SESSIONS, 1836. 89 Robert Morris's Estate, in Bankruptcy. sides, have given unwearied labor to their investigations, and although so many days have been appropriated to the hearing, my attention has been required and willingly afforded to every part of it. I may be tedious in developing my views of the leading matters and questions which have been discussed, but I would rather be so, than overlook what either party may deem to be important. The first question which presents itself, is the jurisdiction or authority of the District Judge of the United States over the subject-matter of the petition of Henry Morris — that is — had he the power to grant the prayer of that petition, and to make the order to supersede the commission of bankruptcy, then in operation against Robert Morris. This question has been argued on the basis of the powers of the Lord Chancellor in England, under the British statutes of bankruptcy, and this inquiry was pursued in two divisions. 1. What are the powers of the Lord Chancellor, and from what source does he derive them ? 2. Has the District Judge the same powers in the execution of our Act of Congress, as are exercised by the Chancellor ? It is true that no case has been shown where the Lord Chan- cellor has superseded a commission of bankruptcy under cir- cumstances like those of the present case ; but these circum- stances are really so extraordinary, that one may say they have never before occurred, and are not likely to occur again. We have here a commission taken out against a bankrupt, who was the possessor of an immense real and personal estate, laboring under incumbrances of unknown amounts. The commission proceeds so far, as that creditors having debts of three millions made the regular proofs before the commissioners. An election was duly held for assignees, and they were chosen — a large number of the creditors attending for that purpose. The assignees never accepted the trust — never executed a coun- terpart of the assignment, and the whole proceeding stopped. After the commissioners had executed their assignment, which was on the 8th of December, they met no more, nor was a 90 NOVEMBEK SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. movement made by any creditor of the bankrupt, who had, or had not, proved under the commission, to call the commissioners together, to have other assignees appointed, or to move one step further with the commission ; and so it remained for five- and-twenty years, when the supersedeas was applied for ; and so that application remained for five years longer, without a stir on the part of any creditor to proceed with the commission. We cannot be surprised that no such a case has been found in England, and we must therefore look rather to the principles on .which the Chancellor has raised his power in cases of bank- ruptcy, than fj)r any precedent like this, — creditors to the amount of three millions, taking such an interest in the commis- sion as to go through the trouble and formality of proving their debts, attending afterwards to choose assignees to take charge of those interests, and then suddenly abandoning the whole concern, and never, to this hour, returning to it. To ascertain the nature and extent of the jurisdiction of the Lord Chancellor, over cases of bankruptcy, we must inquire what is the source from which he derives it, and how he has drawn his powers from that source. I think an examination of the autho- rities on this subject will show, that all his powers are derived from the statutes of bankruptcy ; that he has none as a Court of Chancery — not one that he has not drawn either from the express authority of those statutes, or by the constructions and implications he has thought he might fairly make, being found necessary for the just and full execution of those statutes, to give to them all the benefit to the bankrupt and his creditors intended by the legislature, and to prevent any wrong and in- justice by the abuse of them. Numerous cases have been cited, which show, that the authority to supersede a commission of bankruptcy, which is exercised without question by the Lord Chancellor, extends over a large field; indeed, no precise boundaries appear to be marked for it. The Chancellor inter- feres in this way on very broad and general principles, for the purposes of justice, and to prevent an abuse of the bankrupt laws, to the prejudice of the bankrupt, as well as of the credi- NOVEMBER SESSIONS, 1836. 91 Robert Morris's Estate, in Bankruptcy. tors. They are both under his protection, and he takes care that the true intentions of the legislature in making the statutes, as he understands them, shall be carried into effect, and shall not be perverted, either by the bankrupt, or by his creditors, to the TTork of injustice. This is the broad principle on which he acts, and, without any express words in the statutes, he assumes- that his powers are commensurate with these objects. But as this extent of power is not expressly granted to him by the language of the statutes, it is argued that he exercises it by virtue of his general Chancery jurisdiction; that he takes this authority to himself because he is the Lord Chancellor, and holds the great seal ; and not because he is the person or officer designated in the bankrupt laws to issue the commission : in short, that he has the authority only to issue the commission, with certain other powers, by the express grant of the statute, and that his subsequent control over it, except in the cases de- signated, is by virtue of his office and jurisdiction as Lord Chancellor. I am not of this opinion ; and a brief recurrence to some of the leading cases will show that it cannot be sup- ported ; on the contrary, that all and every power he exercises over bankruptcy, is derived, either expressly, or by construc- tion and implication, from the statutes : that he has none as a Chancery Court, or by virtue of his office as Chancellor ; that the two jurisdictions are entirely separate and distinct. The jurisdiction of the Lord Chancellor in bankruptcy is distinct from that of Chancery, 6 Ves. 782. The jurisdiction is under a special authority, distinct from that of the Court of Chan- cery, 8 Ves. 250. It is a legal and equitable jurisdiction, 15 Ves. 496. The case of Ex parte Cawkwele, 19 Ves. 233, was a petition for an order on the bankrupt to produce to the com- missioners a deed of trust. The order was made by Lord Eldon, who says : " It is in many instances difficult to state precisely the principle on which the jurisdiction stands, in which a bankrupt is often ordered to do that for which there is no express authority." Now if it might have been referred to the general jurisdiction of the Chancellor, there could have been 92 NOVEMBER SESSIONS, 1836. Kobert Morris's Estate, in Bankruptcy. no difficulty about it ; nothing could be more simple ; the want of an express authority would have created none. Lord Bldon then adverts to Lord Hardwickb's opinion in these terms : " It is well we have Lord Hardwickb's authority for it ; who took a very large principle as to the jurisdiction in bankruptcy ; thinking that the legislature having committed to the Lord Chancellor the jurisdiction in bankruptcy, he had all the autho- rity that he had when sitting in the Court of Chancery." Well miglit Lord Eldon say that this was a large principle to act upon in such a case. This opinion of Lord Hardwickb has been much relied upon by the counsel for the petitioner in support of his doctrine, that the Chancellor derives his extra- ordinary powers over cases of bankruptcy from and by his general chancer-y jurisdiction. I confess, it appears to me to admit of no such conclusion ; on the contrary, it is the very strongest case we have, to show that he does nothing by his general jurisdiction, but that he obtains all his powers from the statutes, but has thought himself at liberty, to use, very freely, his discretion in construing the statutes, in order to get, by implication, the authority he thought necessary for the purposes of justice, and the due execution of the statutes. This opinion of Lord Hardwickb is truly the most copious stream of power that the Chancellor has drawn from the statutes, the acknowledged fountain of all his jurisdiction in bankruptcy ; and it is so far from restricting that jurisdiction to the cases expressly granted, that it sets us an example in the use of con- struction and implication to obtain powers, which has no limits but the discretion of the Chancellor or Judge. To return to Lord Hardwickb — on what ground does he assume the large principle which gives him so much power ? Is it by his dis- tinct independent jurisdiction as Chancellor ? By no means — he thought " that the legislature having committed to the Chan- cellor the jurisdiction in bankruptcy, he had all the authority that he had in the Court of Chancery." This was his construc- tion of the statute — his belief of the intention of the legislature — his inference from the language and objects of the statutes, NOVEMBEK SESSIONS, 1836. 93 Robert Morris's Estate, in Bankruptcy. and of consequence it is from them and from them only, that he assumes the jurisdiction. In the case in 14 Ves. 449, the question was, -whether the commissioner could compel the bank- rupt who had obtained his certificate to attend the commis- sioners. The Chancellor said, " Without the existence of such a power, the mode of allowing certificates must be altered." He asserts that he has the power to compel the attendance of witnesses, admitting that there is no express authority given by the statute for that purpose. How then does he get it ? Is it by his general chancery jurisdiction ? By no means ; but by implication ; by construction of the meaning and intention of the bankrupt laws, which he says " were framed with a view to the authority with which the Lord Chancellor is intrusted in his ordinary jurisdiction." But the statutes do not say that they were framed with any such view, nor is there any refe- rence in them to the general chancery jurisdiction for their exe- cution. It is the mere inference or implication of the Chancellor, as is the opinion of Lord Haedwickb, from the statutes them- selves, from which, in some way, by construction more or less reasonable, the whole power of the Chancellor in bankruptcy is derived. The case of Ex parte Smith, 19 Ves. 473, was a petition to supersede a commission of bankruptcy, because it was taken out by an attorney who was hot a solicitor of chancery. No express power is given to supersede for this reason. The ob- jection was overruled: not on the ground of a want of jurisdic- tion, but because " A commission of bankruptcy is a proceed- ing not in the Court of Chancery ; and a solicitor in Chancery has no more connexion with proceedings in bankruptcy, and is as much a stranger, as an attorney of King's Bench or Com- mon Pleas." And so is the Chancellor as such. Eden, 449, quoting Mr. Christian, says, the jurisdiction of the Lord Chan- cellor in bankruptcy is " a subject involved in great obscurity and mystery." Why so, if it may be referred at once to the general Chancery jurisdiction ? He proceeds, "which can only be developed by attention to its history and progress, and 94 NOVEMBER SESSIONS, 1836. Eobert Morris's Estate, in Bankruptcy. to those general principles of the Common Law hy which sta- tutes are construed, and to those also which are applicable to every new commission emanating from the great seal by virtue of the authority of the legislature." The author then refers to the opinion of Lord Bldon in 14 Ves. 451, as " comprising everything necessary to be known upon the subject." In llx^ parte Dufrayne, 1 EoU. Rep. 333, it is said, the Chancellor will supersede, if justice requires it, although the strict law would not. The result of these authorities seems to be that the Lord Chancellor, taking the language of the statutes and the inten- tion of the legislature for his premises, determines, by a pro- cess of reasoning and deductions from them, that he has cer- tain powers in the execution. of the bankrupt laws, which are not expressly given to him, but which he believes are incidental to the power given, and maybe implied from the premises men- tioned, that is, the language and intention of the legislature, and not from the great seal. Has the Chancellor a broader discretion in the construction of a law, which he is called upon to execute, than the District Judge in the same situation? They must both take the statute for their guide and authority as they conscientiously understand it. The British acts have named the Chancellor as the person or officer who is to issue the commission and hold other expressed powers. Any other person or officer might have been named, and his powers would have been the same, provided the words of the statute would have afforded the same construction or implication. With us the District Judge issues the commission, and has other express powers, and he has also all the powers which he may deduce by a fair and legal construction of the Act of Congress, and the , intention of the legislature in framing that Act. The sound and tenable reasoning on the subject appears to me to be this. Cases must occur in which justice to the bankrupt, justice to his creditors, the rights and interests of both, the w:hole scope and spirit of the bankrupt system, will require, that a commis- sion issued ought to be revoked and superseded : that its con- NOVEMBER SESSIONS, 1836. , 95 Kobert Morris's Estate, in Bankruptcy. tinuance would afford a benefit to no one, -would injure many, would countenance injustice, perhaps fraud. Can it be tben that, because the Act of Congress has no enumeration of such cases, no special provision or grant of power, to prevent or arrest these evils, there is therefore no remedy for them, there is no authority over them ? Such a presumption is insufferable. Where then should we look for the authority to perform this act of justice? To whom must we presume it was intended to be intrusted ? Who is to recall the commission ? — the authority which is thus abused, which every one must agree ought to be recalled by somebody ? The answer would seem to be, that the jurisdiction which issued the commission ought to be, must be, in the absence of any other, — and no other exists, — that which shall revoke it. That the judge to whom the power is given to issue the com- mission has also the power to recall it, if, instead of answering the purposes for which it was issued, it is used as an instrument of fraud, of oppression, of injustice, for the destruction of the property and rights it was intended to preserve, without pro- ducing one of the benefits expected from it. If the judge should supersede, where he ought not to have done so, by a false or forced construction of the law, taking by such means a power which he was not entitled to, the act will be a nullity ; and any party injured by it can obtain ample redress. But if he has no authority to supersede his commission, the mischief will go on ; and I know of no remedy for it. To apply this remark to the present case : if, as has been contended on the part of the petitioner, the supersedeas was ordered without any authority, — if the judge exceeded his jurisdiction in making the order, — it is obviously a nullity ; it does not stand in the way of the rights or remedies of Mr. Sansom, or any other person, creditor or not a creditor, having proved or not having proved under the commission ; but the commission, and every right and remedy under it, now stand in as full life as on the first day of its existence. Why does not the petitioner pro- ceed as if the supersedeas had no existence ? If his judgments 96 NOVEMBEE SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. will avail him in any way, or to any purpose, the supersedeas opposes no impediment to their operation. If, by lapse of time, or other means, he can have no proceeding by his judg- ments against the lands, which now seem to be the object of his pursuit, or against any other property of the bankrupt, then the revocation of the supersedeas would afford him no aid against that difficulty ; it would not better his situation in the smallest degree. The supersedeas, on his argument of its in- validity, does not stand between him and these lands, or impair his remedies against them. If he has lost them, it is not by a void supersedeas. What course may he take if the supersedeas were' revoked, according to the prayer of his petition ? He may proceed under the commission, have new commissioners appointed, assignees chosen, the property of the bankrupt, wherever found, taken possession of and distributed among his creditors. What hinders his doing all this now, on the sup- position that the supersedeas was unauthorized and is void ? On this view of the case, on this ground for revoking the supersedeas, he has no interest in revoking it, because it works no injury to him or his rights. Nor can the holders of the new warrants, which, it is said, have been laid on the lands, — a part of them in Schuylkill County, — derive the least advan- tage from the removal of the supersedeas, be it valid or in- valid. They may bring their ejectments. If the supersedeas be good and valid, they will have to encounter the title of Robert Morris, and no other ; for the lands were sold as his property, and the purchasers hold them only by his title. If the warrant-holders show a better one, they will recover. On the other hand, if the supersedeas be ineffectual and void, still, the warrant-holder must meet and overthrow the same title of Robert Morris, for his creditors will defend under that title. The result then is that, whether the petitioner intends to pur- sue these lands under his judgments, or by the new warrants, in which he denies having any interest, or by proceeding with the commission, the supersedeas— if, as he contends, invalid— ' NOVEMBEK SESSIONS, 1836. 97 Robert Morris's Estate, in Bankruptcy. •will put no difficulty in his way ; and he may have its validity tried by any court of competent jurisdiction he may select. Before I leave the question of jurisdiction, I must not omit to notice the case in 1 Paine, 396, Lucas v. Morris. A bill was filed in the Circuit Court of the United -States, calling upon the defendants, as trustees, to account, and to compel them to carry into execution the trust which they had assumed as assignees of a bankrupt. One of the defendants pleaded in abatement to the jurisdiction of the Court, alleging that the matters and causes of complaint belonged exclusively to the Judge of the District Court. Judge Thompson, of the Circuit Court, said that, if the bill embraces any matter of which the Circuit Court had cognizance, the plea must be overruled ; for it claims for the District Judge the sole and exclusive jurisdic- tion of all matters comprised in the bill. The Judge says that he cannot discover that the Act of Congress has given ^'■ex- clusive jurisdiction to the District Judge over the entire execu- tion of the law." Certainly it does not ; nothing can be more manifest ; and it is equally clear that, in the matter in question before the Court, the Act of Congress did not, either expressly or by any reasonable implication, give the jurisdiction to the District Judge, much less a jurisdiction entirely independent of the ordinary powers of courts of justice. It was claimed on the broad ground that the District Judges were the sole organs to administer the bankrupt law. Now, there is a wide difference between the powers of the Lord Chancellor and our judges in this very matter of control over the assignees. In England the choice of assignees is subject to a control, the largest, most general, and unqualified, of any of the autho- rities given to the Lord Chancellor in bankruptcy. By the thirty-first section of Stat. 5, G. II., ch. 30, the Chancellor may remove assignees and appoint new ones ; and this control over them carries with it the authority to compel them to account ; — a refusal would be a good ground for their removal. By the eighth section of our Act of Congress, the power of removing assignees, and appointing others, is expressly delegated to the 7 98 NOVEMBER SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. creditors, and excludes every implication of that power, or of any power incidental to it, in the District Judges. No in- ference, then, can be drawn from anything that was said or done by Judge Thompson in the case of Lucas v. Morris, that the District Judges possess no powers over the execution of the bankrupt laws but such as are expressly given to them ; nor even that they have not the jurisdiction of the Lord Chan- cellor, except where it is clearly limited by the provisions of the Act of Congress. To revert for a moment to the "large principle" of Lord Hardwicke, sanctioned in a manner by Lord Eldon, the argument (for it is but an argument), founded on the statutes, that, because the Lord Chancellor is named to issue the com- mission, &c., he may therefore bring his whole chancery juris- diction into the execution of these statutes, is no better than to say that because the District Judge is named in the Act of Congress for the same purposes, he may exercise all his judicial authority in the administration of that Act ; and then, by in- voking the analogy, so often repeated, between commissions of bankruptcy and executions, the power of the Judge will be ample enough. With great deference to such high authority, it appears to me that neither the Chancellor nor the Judge have any jurisdiction over bankruptcy, virtute officiorum, but obtain it directly from the statutes, by express grants, or by incidents to those grants drawn from the statutes "by those general principles of the common law by which statutes are construed." Eden, 449. Whether a District Judge, in his discretion, would feel authorized to draw as largely on this fund as the Lord Chancellor has done, is another question. Whatever power they rightfully have is by virtue of the statutes, and not by virtue of their offices. Some authorities have been cited to show that even in Eng- land it is too late for a supersedeas after the bankrupt has obtained his certificate. I think this principle has not been sustained. It is manifest that the power of the Chancellor over the commission continues after the certificate, from the NOVEMBER SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. orders he has repeatedly made upou the bankrupt, witnesses, &e. It is true that Lord Eldon says, as quoted by Eden, 434, citing (2 Rolle, 324) Ex parte Crowder, " that he never knew an instance in which a bankruptcy was superseded after the bankrupt had obtained his certificate, on an objection to the debt, trading, or act of hanhruptcy ." This limitation of the objection to these objects affords some implication that it extends no farther ; and we see a good reason why, after the proof of the debt of the petitioning creditor, the trading, and act of bankruptcy by the bankrupt, have been acquiesced in, until he has obtained his certificate, he shall not be deprived of it by objections to them. Eden, pursuing the subject, says that " it has been determined that a commission will not be superseded after the certificate allowed, unless the invalidity appear on the proceedings." For this he cites Buck. 75, Ex parte Levi. By turning to the case, it will be found that it is so far from changing the ground taken by Lord Eldon, that it is merely confirmatory of it, and by no means sustains this author in his general allegation that a commission will not be superseded after certificate allowed unless the invalidity ap- pear on the proceedings. The case was, " A bankrupt had ob- tained his certificate, and then the petition to supersede the commission was presented, on the ground that he was not a trader within the meaning of the bankrupt laws ; and that the commission was a concerted one." The Vice Chancellor de- cided that " unless it appears upon the face of the proceedings that the party declared a bankrupt is not a trader, the peti- tioner is precluded from going into evidence to disprove the fact of trading, without he can show that the commission was fraudulent." On this decision, being one of the special cases put by Lord Eldon, Mr. Eden has raised the general proposi- tion, that " a commission will not be superseded unless the in- validity appear on the proceedings." In Ex parte Bass, 4 Madd. 270, the same doctrine is given in the same restricted terms. The bankrupt will not, after having obtained his certificate, be allowed to impeach the com- 100 NOVEMBEK SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. mission, upon the ground that he was no trader, but he was permitted to supersede the commission, after certificate, where the title of the assignees had been successfully opposed in an action, and the commission, therefore, becomes inoperative. In the same sweeping way, Eden lays it down, that " where a bankrupt has submitted to his commission for a considerable length of time, he cannot petition to supersede it." For this he cites, 2 Ves. 326, Flower v. Herbert. This was not the case of a petition for a supersedeas, nor for anything that has any analogy to it. It was a motion for an injunction to stay proceedings in an action at law, brought by the bankrupt against his assignees. It was an action of trover. The bank- rupt had surrendered ; had submitted to an examination ; he had himself petitioned for new assignees ; and a year and a half after these admissions that the proceedings under the com- mission were right, he brought an action of trover against the assignees, denying that he was a bankrupt. The Chancellor said, that no one would accept to be an assignee, if they were to be exposed to such suits by the bankrupt, notwithstanding his acquiescence. This was no petition for a supersedeas on behalf of the bankrupt, but a prayer for an injunction against him, in a suit he had brought, under such circumstances, against his assignees. It seems to me that the power and practice of the Chancellor over bankruptcy, in all its stages, before and after the certifi- cate, are not confined to any specified cases, but are exercised whenever, in his sound and judicial discretion, he finds his in- terference right and necessary, to carry into effect the due exe- cution of the statutes, according to the intention of the legisla- ture, and to prevent any abuse of them for the purposes of fraud, oppression, and injustice. It is manifest from the course of my remarks, that if I were compelled to pronounce a decision upon the question of juris- diction, I should, as now advised, sustain it as a necessary power for the just administration of the bankrupt law, according to the intention of the legislature, and to prevent great abuses NOVEMBEK SESSIONS, 1836. 101 Robert Morris's Estate, in Bankruptcy. and mischiefs wMcli might exist if it could not be exercised. I think, however, that I am not now called upon to express any more absolute opinion upon this point. Were I to yield to the argument against the power of the Judge to order this superse- deas, it would, of itself, be a sufficient reason for refusing the prayer of the petition. Why should I do that which will be of no benefit to him ; which will add nothing to his rights or re- medies ? Why should I oppose an inefficient, useless revoca- tion, to an inefficient, powerless order ? I should not have the reluctance or hesitation of a moment to recall an error which would restore to a suitor any right of which the error had de- prived him ; but I should be unwilling to spread upon my re- cords contradictory decrees, for no beneficial purpose or end to anybody. The chance of the petitioner, so far as he consi- ders the success of the prayer of his petition to be important, is better, by admitting the power of the Judge to order the supersedeas, and showing that the case was not one in which the order ought to have been made, and probably would not have been made, with a knowledge of all the circumstances. I will, therefore, proceed to examine the case on the supposition that the Judge had authority to order the supersedeas ; and the question then will be, whether the petitioner has shown good cause for revoking it. In this view of the case the petitioner must put himself upon his equity, as opposed to the equity of those who resist his ap- plication. At his first step he must meet and overcome the objection to his application in the character of a creditor of Robert Morris, after having forgotten or disregarded it for so many years. The peace of society, the settled condition of property, are cardinal objects of every government. To pre- serve them the legislature, in some instances, by positive enact- ments, and, in others, the courts, by their judicial discretion, have raised barriers against stale and neglected claims, which may not be passed, whatever the rights may be that are ex- cluded by them. Such are the limitations of time upon writs of error, bills of review, &c. I shall not hold the petitioner 102 NOVEMBEK SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. in this case to be interdicted from a hearing, even by the ex- traordinary number of years that have passed away, before he made a movement for the assertion of his claim, but consider the delay only as it affects his equity under all the circum- stances of the case : I do not speak of his inattention to the proceedings for obtaining the supersedeas — he says he had no notice of them — but of his inattention to the commission, of which he certainly had notice and knowledge, and to reinstate which is the object of his present application. For thirty years he thought the commission of no importance to him ; he had no right or interest in it or under it which, in his opinion, was worthy of his attention ; and now he seeks, on the ground of that right and interest, to bring back this commission to existence. We may certainly say, that he must be prepared to show strong reasons for such an indulgence. I do not say that this neglect of the claim he now urges upon me has shut him out from a fair consideration of his case. I have heard him — he has been faithfully and ably defended, and I shall endeavor faithfully, at least, to do him justice, not overlook- ing the justice that may be due to others. I must here recur to his conduct during the progress of the commission. He saw the whole proceeding entangled, and finally stopped, by impedi- ments he could have removed at once, but he stirred not. Having securities which put him in a better situation than other creditors, he let them struggle in endeavors which he thought would be fruitless, while he declines to share the labor, or put one dollar at hazard in the attempt. After a lapse of many years, the family of the bankrupt discover some property, or some interest which he had in property, which was going to waste and ruin, because there was nobody to attend to it. The creditors, and the petitioner among them, had for five-and- twenty years abandoned the whole concern, and there was no power in the family of the bankrupt, or in anybody, to make them or him return to it. What was to be done ? Was the property, whatever was its value, to be lost, for want of an owner ? If the creditors would not have it, if Mr. Sansom rejected all interest in it, should it not revert to the party NOVEMBEK SESSIONS, 1836. 103 Robert Morris's Estate, in Bankruptcy. who had assigned or tendered it to them, provided there was a power in the law to return it to him ? Why did Mr. Sansom disregard, for so many years, the commission he now thinks of so much value to him ? It was known to him — he was called on again and again to appear with his claims as a creditor before the commissioners. He did not — he would not appear. Nobody knew, officially, that he was a creditor — that he had any claims upon the bankrupt, or his effects — any interest in what was doing under the commission, or what might finally be done with it. After a lapse of twenty-five years, he wakes up — ^he comes forth from his obscurity, and presents himself here as a creditor of Robert Morris, having an interest in the commission of bankruptcy, which entitles him to the favor of the judge, by the revocation of an order deliberately made, in relation to that commission. He asks that this order may be expunged or revoked, in order that he may be allowed to enrol himself under the commission as one of the creditors of Robert Morris, for no other creditor asks for it ; he now wishes to prove his debt before the commissioners, and to rein- state the commission with all its legal rights and consequences. He seems to be either one of the sleepers for whom the law will not watch ; or one of the ivatcJiers who look quietly upon the labors of others without sharing them, but keep themselves ready to seize upon any benefit that may result from them. What reasons has the petitioner offered to justify or explain his long inaction in relation to his rights and interests as a creditor of Robert Morris ? I have no reference now to any proceedings under his judgment, or to the validity of that judg- ment, as it may or may not be affected by time. He has offered some reasons which he thinks should rebut the presump- tion of satisfaction of his judgment by lapse of time, which may be hereafter adverted to. But that is a secondary ques- tion on this application, which is not for the revival of the judgment, or to authorize any proceeding under it. For my present object, I may consider that he has a debt, that might be proved under the commission. He asks that the commis- 104 NOVEMBER SESSIONS, 1836. Kobert Morris's Estate, in Bankruptcy. sion may be reinstated, for the sole purpose of admitting him to that proof. He asks that an order which superseded that commission, and which in the present inquiry is assumed to have been authorized and valid, shall be revoked, that he may have the opportunity to present his claim to the commissioners, and make such proof there of the validity of his debt, as may be in his power. It is clear, then, that the delay, the neglect which he has to account for, is not of his judgment, but of the opportunities which were afforded to him, for thirty years, to do that which he now desires to do. I have no recollection that any explanation, legal or equitable, has been offered for Mr. Sansom's declining for so long a time to prove the debt he now wishes to prove. The four reasons for inaction were ap- plied to his judgment — to his debt, to show that it was not lost by lapse of time. But none of these were used, or could be used, to explain his neglect of the commission, and his entire disregard of the rights under it which he would now recall and reassume. These reasons were — the bankruptcy — the death of Mr. Morris — the difference between a judgment and a bond — and his ignorance of the existence of the Schuylkill County lands. Granting that these may have been the motives for taking no proceeding under his judgment, and without antici- pating how effectual they may be to preserve his debt from ex- tinction under the pressure of thirty-five years, it is enough to say, that they do not account for, justify, or explain, his delay to prosecute his rights under the commission. I will now suppose that this objection is removed or waived ; still it is incumbent on the petitioner to satisfy me that he will gain some benefit — some substantial and adequate benefit — ^by obtaining the prayer of his petition. I will not revoke a de- cree rightfully and deliberately made, after so long an acqui- escence by all interested in it, and most especially after rights have been acquired under it, unless it is clearly shown to me that justice to the petitioner requires it, and that justice will be measured, in part, by the advantage he is to gain by it. If it be clear he can gain nothing, he has no justice to support NOVEMBER SESSIONS, 1836. 105 Kobert Morris's Estate, in Bankruptcy. him — he ■will be a mere stranger intruding himself into a pro- ceeding in which he has no interest. If his interest be but nominal, or so inconsiderable as not to be worthy of regard, the judge would not disturb a decree from a repose of six years, and, assuredly, will not put in jeopardy or doubt the in- terests of others, to gratify such an application. It is a maxim ever of the common law, that " de minimis non curat lex," and new trials have been refused, on the ground of the insignifi- cance of the interest of the party, who otherwise would have been entitled to it. It is clear that, in this case, the petitioner can gain nothing by his petition and the order he prays for, but the opportunity to prove his debt under the commission, and to receive such a dividend of the Schuylkill County lands, which are all the property of the bankrupt known to us, as his debt will entitle him to. The inquiry, then, to which a judge, acting on a broad and equitable discretion, will turn, is, whether the petitioner can obtain this benefit by reopening the commission, and what will it be worth to him ? The judgment, which is the evidence of his debt, is now nearly forty years old, almost double the period which the law allows to the existence of it as a debt. His last proceeding on it was in 1805 — more than thirty years before his present application. Could the com- missioners of the bankrupt admit such a debt to be proved, or such a creditor to participate in the distribution of the effects of the bankrupt ? If it stood naked and alone, it is, in my opinion, most manifest, that either the bankrupt, if living — or his representatives, as he is dead, — or any of his creditors, ob- jecting to the admission of such a debt, the commissioners would have no legal right to receive it ; and if received, it would be expunged, as in the case in 15 Ves. 479. The exa- mination of the numerous cases on this point has occupied a large portion of the argument of counsel on both sides. I for- bear to examine them. The general efiect of such a lapse of time upon a judgment is not denied ; but it is alleged, that this effect, which is but a presumption of law, may be explained and rebutted by circumstances — by evidence, which, in the 106 NOVEMBEK SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. opinion of a court and jury, would keep the debt alive ; and that the petitioner has a right to go before the commissioners, or to a jury, at his election, to satisfy them that he has such circumstances and evidence as would relieve him from this pre- sumption—would account for his delay, in a manner to pre- serve his debt. This is true ; but in order to induce me to grant his petition on this ground, it is incumbent upon him now, and here, to satisfy me that he has such evidence and such circumstances in his power, not as absolutely as might be required of him by the court, but sufficiently so to convince me that he has some fair and reasonable ground to go upon— some probable legal expectation of making out his case, if the op- portunity is accorded to him. In an application to a common law court to open a judgment and let the party into a defence, the court will be well satisfied that he has an available de- fence, before they will disturb their judgment. It is not enough for him to say — give me the opportunity, and I will try what I can do with it — ^he must show to the judge, for whose interference he applies in his behalf, what his reasons are, and that he has a good case to exhibit. In the present case, I do not think that, as matter of law, the facts and cir- cumstances relied upon by the, petitioner could avail him to avoid the consequences of the lapse of time upon his debt. Should he go to a court, I must presume that the judges would take the decision of the law upon themselves ; and as to the facts, taking them to be just as the petitioner has represented them, they are altogether insufficient to entitle him to relief. I do not again repeat them, or go into the detail of my reasons for this opinion. It appears to me to be obvious, that neither the bankruptcy and death of Mr, Morris, nor the alleged dif- ference in the law between a bond and a judgment, nor the pe- titioner's ignorance of the lands in question, are sufficient apo- logies for his neglecting to take the prescribed and ordinary means of keeping his debt alive, for any contingency that might be beneficial to him. Why should I open a commission for such a claim, which, with my opinion of it, I must believe NOVEMBER SESSIONS, 1836. 107 Robert Morris's Estate, in Bankruptcy. would not be received by the commissioners, or by any other tribunal to which the petitioner might carry it ? If I should refuse the prayer of the petitioner, if no reason were offered for his inertness for five-and-thirty years, I may, and ought also to refuse it, when the reasons offered to remedy this defect, are to me clearly insufficient: and particularly when those reasons are of a character that would fall under the dominion of the court, rather than of a jury, consisting of undisputed facts, and leaving the legal inferences from them only to be determined. The effect of the bankruptcy and death of Mr. Morris upon the lapse of time, are, in my opinion, clearly ques- tions of law for the decision of the court, and not of a jury ; so also is the supposed difference between a bond and a judgment, in this respect. The fourth reason — that is, the ignorance of Mr. Sansom of the existence of the land in question — is more of a mixed question ; but I cannot suppose that either a court or jury would consider it as a good reason for such laches, or as avoiding the legal effect of time upon the debt. If he meant to take the chance of the discovery of property, he should have kept his judgment in a situation to avail himself of it ; other- wise, we should, I think, have had heretofore, and shall have hereafter, the same defence set up in very many cases. If it is enough for a plaintiff to say that he did nothing under his judgment, because he did not know of any property to levy it upon, it is obvious how easy it will be to defeat the wise pro- vision of the law which requires diligence of him. The reason is good, perhaps, for not taking out an execution, but certainly it does not account for the neglect to keep the judgment alive, by the inconsiderable trouble and expense of issuing a sci. fa. once in every five years. It must be understood, that I do not put my ultimate deci- sion of this case upon this ground. It may be that I am mis- taken on it ; it may be that the commissioners, or a court and jury, would admit the proof of the debt, notwithstanding the lapse of time against it ; it may be that they would deem the reasons of the petitioner for his inactivity sufficient to rebut 108 ' NOVEMBER SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. the presumption of law ; but it will be seen that my argument against the present application, is independent of the existence or non-existence of the debt of the petitioner ; although, in- deed, if he has no debt, it is, of itself, a sufficient reason for rejecting his petition. But if the judgment had been duly kept alive — if it were now a good and subsisting debt — the ob- jection remains, which I think is fatal to this application to the equity and discretion of the judge, that the petitioner has neglected the matter for thirty-five years, during the whole of which time it was in his power to do that which he now desires to do, and to allow which, he calls upon the judge to review a proceeding of six years' standing, and to revoke a decree under which valuable rigfets have been acquired. This is the radical defect of his claim. There is no equity in such a petition. There is another consideration, of no imposing weight, in the legal aspect of the case, but which bears strongly upon its equity. If it were certain that Mr. Sansom will take upon himself to proceed with this commission — to have new commis- sioners and new assignees, who will accept the trust, appointed ; and that the commissioners will admit the proof of his debt, and all this must be done, or he has no object or interest in the success of his petition — then I may inquire whether he will have such an interest in revoking the supersedeas, and restor- ing the commission, whether he can derive such a benefit from it, as will justify me, in the exercise of a sound and equit- able discretion, in annulling a decree made so deliberately and so long ago, and in taking the hazard of the wrongs and inju- ries which it may inflict upon others who have put their faith in the permanency of the decree ; — can I hesitate to see on which side the strongest, the preponderating equity lies? It is hardly credible, that the petitioner would proceed with this commission, when, from any calculation I have been able to make on the facts now before me, he could never receive from it one-half of the amount of the expense of his first step. He could not obtain the first meeting of the commissioners for twice the sum he will, if his whole claim is allowed, receive NOVEMBEK SESSIONS, 1836. 109 Robert Morris's Estate, in Bankruptcy. from them. I will not presume that he is struggling to gratify his pride or his resentment by a barren victory, which he never intends to prosecute to any result, but, having succeeded in annulling the supersedeas, will leave the commission as he found it. I confess, that nothing in this case, from the begin- ning, has been so obscure to me, as the object of the petitioner. It is admitted that his judgments cannot be aided, as their liens are certainly gone ; and indeed no advantage is claimed or ex- pected by him, but to prove his debt, under the bankruptcy, and I have shown what that is worth. It is no answer to say, that if he has any interest, however small, it is enough for this application. He addresses himself to the discretion of the judge, on the equity of his case, and it is the duty of the judge to look to other parties and their equities, which may be af- fected by his decision. I might well stop here, but it will, perhaps, be more satis- factory and just to one of the parties who has opposed this pe- tition to say a few words upon a part of the case which has occupied a considerable- portion of the discussion, and excited much of its animation. I mean the interest of Mr. Rawle in the supersedeas, and in the lands he has purchased, since it was awarded. The facts are, that a certain judgment was ren- dered against Mr. Morris, at the suit of Joshua B. Bond, in March, 1797. On this judgment a testatum fi. fa. issued on the 1st February, 1798. Here it rested until April, 1830. In the mean time the plaintiff, J. B. Bond, died, and his admi- nistrator, for the use of William Rawle, on the 1st day of April, 1830, issued a seire facias against the representatives of Robert Morris, who was also dead, to revive the judgment. On the 6th of December, 1830, judgment was confessed on the scire facias, by Mr. Williams, who appeared as the attorney of the defendants. The original judgment being thus revived, a fi. fa. was issued which was levied on certain unimproved lands, now in Schuylkill County ; they were sold under a ven- ditioni exponas, in October, 1831, and William Rawle, jun., Esq., was the purchaser for the consideration or sum of $5,100. 110 NOVEMBEK SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. It is evident that these proceedings, if they were objectionable, can have no direct operation or influence to help the petitioner if his case is defective in itself; so far, indeed, as he has been opposed by the claims of Mr. Rawle, as a bona fide purchaser on the faith of the supersedeas, he may inquire into the cha- racter and good faith of the purchase to resist the equity of that claim ; beyond this it is of no importance what were the circumstances of that sale and purchase, or who are interested in them. But, in justice to Mr. Rawle, I ought not omit to take some notice of these proceedings. The allegations on the part of the petitioner are, that Mr. Rawle, in truth, paid no money for this purchase, and that the representatives of Mr. Morris are interested with him in the purchase, and that for part of it he is a trustee for them. Is there any force in these objections, either as they apply to the case before me, or for any purpose ? If Mr. Rawle was a bona fide assignee, and holder of Mr. Bond's judgment, and that has not been ques- tioned, there was nothing unusual, improper, or illegal, in his becoming the purchaser of the property at the sheriff's sale, nor in his being allowed to give a credit on his judgment for the purchase-money. If Mr. Sansom had any objection to this, legal or equitable, he might have called upon the sheriff to bring the money into court, and then the question would have been examined and decided by the proper tribunal, and not left for us on this petition. But he comes here to cure all his delays and delinquencies. It is clear that Mr. Sansom knew that this course was in his power, for the ■ motion was made in the Court of Schuylkill County, which refused to con- sider it for want of jurisdiction, as the process under which the sale was made, had issued from the Supreme Court. The mo- tion then might have been renewed in the Supreme Court ; and the right of Mr. Rawle to pay for the land in this way, with every other objection connected with it, would have been fully attended to and finally determined. I can see nothing in this objection ; it does not impeach the legality or good faith of the sale and purchase. Nor is there anything more in the other NOVEMBER SESSIONS, 1836. Ill Robert Morris's Estate, in Bankruptcy. objection, that Mr. Rawle is a trustee for the representatives of Mr. Morris as to part of the land. And why may he not he, for part or for the whole? Mr. Rawle appears at the sale, a good and lawful purchaser; he is the highest and best bidder ; he is able and willing to comply with all the terms of the sale, and if he does so, is it any objection to his title, or the honesty of the whole transaction, that other persons, the representatives of the original defendant in the suit, are inte- rested in the purchase, are to answer to him for a proportion of the purchase-money, and to share with him a portion of the land ? I cannot see it ; this is purely an affair between them- selves, and is no more liable to objection than if Mr. Rawle, after his purchase, had sold a part of the land to the same per- sons. This trust, if it existed, had no effect upon the sale, for it is not pretended that it was known, and even now rests only on conjecture. If, however, it was an objection to the sale, it is now too late to make it ; the occasion is gone by. " "When the sheriff comes to acknowledge his deed, the Court may, if there has been fraud or unfair practices, set aside the sale." Wharton's Dig. 213. The interest which the representatives of Mr. Morris had in superseding the commission of bankruptcy, and that they ex- pected to derive some benefit from the property which would be liberated by the supersedeas from the .operation of the com- mission, has never been concealed. On the contrary, it was their open and avowed object ; and their manner of obtaining it, if free from fraud and unfair practices, is of no moment. The supersedeas was ordered on the application of Henry Morris, one of the children of Robert Morris, and the ground of it was the waste and loss of property, which had taken place by locking it up under the commission, and the hope of rescuing what might remain. It was known that the effect of the supersedeas would be to annul the commission and all that had been done by, and under it, and to restore to the repre- sentatives of the bankrupt the property which had not been legally disposed of. Why did the children of Mr. Morris move 112 NOVEMBER SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. in the thing, if they did not expect some benefit from it ? Now these representatives appear here as distinct parties, to sup- port for themselves, the order that was made on their petition ; and if Mr. Rawle's equity as a purchaser, subsequent to the supersedeas and on the faith of it, were really liable to objec- tion, it cannot affect the rights of the representatives of Mr. Morris, nor the property which has accrued to them by virtue of the supersedeas. Whether the lands purchased by Mr. Rawle constitute the whole property that has reverted to the bankrupt, I do not know, nor, perhaps, can it be certainly known by the parties ; but if the commission is reinstated, that, as well as any other that may exist, will be wrested from them and brought back to the power of the commission. If, in superseding this commission, I transcended the powers delegated to me by the law, it is my consolation that it was a null and powerless act, which can do no injury to the rights of the petitioner. On the other hand, if that order was an autho- rized exercise of my authority and jurisdiction, it is a satisfac- tion to me, of great value, that I have given a close and atten- tive hearing to an able and laborious argument on behalf of the petitioner, in which learning and ingenuity were equally displayed, and that in deciding the case, I have omitted no means in my power, of reflection and research, to come to a sound and just conclusion. I order that the petition be dismissed. On the 30th March, 1838, a petition was presented by N. Potts and Samuel Clement, assignees of the estate of Jacob Clement ; Charles "W. Smith and Jacob R. Smith, executors of the estate of James Smith ; and S. and T. G. HoUingsworth, for the heirs of Jehu HoUingsworth. The petition stated the facts of the issuing the commission, the certificate of discharge, and the cessation of all further proceedings ; it set forth the discovery of property belonging to the bankrupt, the death or disqualification of the commissioners, and prayed the appoint- ment of new ones and for further relief. NOVEMBEK SESSIONS, 1836. 113 Robert Morris's Estate, in Bankruptcy. On the same day the Court ordered a rule to show cause, oa short notice, " why the prayer of the petition should not be granted. Notice to be given to the heirs and representatives of Robert Morris, the bankrupt." The hearing of the parties on the rule was subsequently postponed to the 17th November, 1838. On the 10th November, 1838, the assignees of the estate of Jacob Clement, deceased, William Thaw, one of the heirs of Benjamin Thaw, deceased, and T. G. Hollingsworth, one of the heirs of Jehu Hollingsworth, deceased, filed a petition, in which they stated themselves to be creditors of Robert Morris, and recited the issuing of the commission of bankruptcy and the granting a certificate of discharge. They stated that no further steps had been taken to render the property of the bankrupt available to his creditors, owing, as they supposed, to the be- lief that the unincumbered property was not sufficient to pay more than the expenses of the proceeding. The petitioners then averred that they had recently learned that certain real estate had been discovered, which was alleged to have been the property of Mr. Morris at the time of his bankruptcy, and which ought, therefore, to be applied to the payment of his debts ; that they had learned also that a supersedeas of the said com- mission had been granted, upon the application of Henry Morris, stating himself to be one of the children of the bank- rupt, but not alleging himself to have any interest in the estate ; that, in fact, the said Henry had no interest in the estate, as would more fully appear by reference to the wills of the said Robert Morris and his widow Mary Morris, copies of which were annexed to the petition; that they had no notice or know- ledge of the said application, or of the granting of the super- sedeas until within the last three years, and that they or either of them neither knew nor suspected that any proceedings to supersede the said commission had been commenced or were in contemplation. For these reasons the petitioners prayed for a review of the proceedings in reference to the alleged super- sedeas, that it might be vacated and commissioners be ap- 8 114 NOVEMBER SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. pointed, the original ones having died or become disqualified; and for further relief. On the same 'day the Court granted a " rule to show cause, on the 17th November, why the prayer of the petition should not be granted." Notice of the rule was accepted by the attorney of Henry Morris, and also by the attorney of Wm. Rawle, Esq., who claimed an interest in the property. On the 17th November, 1838, the rules came on for a hear- ing before Judge Hopkinson, and were argued by Mekedith for the petitioners, and by Williams, who appeared for Henry Morris, and Tilghman, who appeared for Wm. Rawle, Esq., against the petitioners. Meeedith, for the petitioners. The present petitioners appear on different grounds from the former petitioner, Mr. Sansom. He had not proved his debts under the commission, while the present petitioners have done so. At the time of Mr. Sansom's petition, Henry Morris was supposed and assumed to have an interest in the estate, when, in fact, he had none, for all Robert Morris's property was left to his wife ; and this Court would not have ordered a super- sedeas knowingly on the petition of a stranger in interest. In order to show that Henry Morris had no interest, we must ask whether Robert Morris had a devisable interest in the lands recently discovered, and if not, whether he had a descend- ible interest in them. It is, however, sufficient for our pur- pose to show that he had a devisable interest, for which see Jones V. Perry, 3 T. R. 88; Fearne Con. Rem. 549; Ex parte Paddy, 1 Buck, 235. The petitioners had no notice of the proceedings for the supersedeas. Sansom not being a known creditor— not having proved his debt— could have no notice but by publication ; but these petitioners are known creditors, on record, and were entitled to personal notice. In a case like this there is a remedy in England without a supersedeas, as the commission of bankruptcy is a trust; in the NOVEMBER SESSIONS, 1836. 115 Robert Morris's Estate, in Bankruptcy. first instance, for the creditors, and then for the bankrupt as to any surplus remaining after the creditors are paid; Lowndes V. Taylor, 2 Rose, 360 ; Hammond v. Attwood, 3 Madd. R. 158 ; Saxton v. Davis, 18 Ves. 81 ; Hx parte Wilson, 1 Atk. 218. It is an error to suppose that the commission is annihilated ; it is not so. The Judge has ordered that a supersedeas shall be issued, but it never has been issued, and the commission is now in full force, and will so remain till a writ of supersedeas be signed and sealed by the Judge ; Ijx parte Freeman, 1 Ves. & B. 38 ; Ex parte Leicester, 6 Ves. 489 ; Ex parte Layton, 6 Ves. 429 ; 2 Madd. Ch. 612 ; Cooke, B. L. 536. A super- sedeas could never have issued on Henry Morris's petition, as it would have been an order to the commissioners, who were not parties to the application, but were strangers out of Court. The issuing of the supersedeas is necessary to give effect to the order for it, for the creditors can be acted upon by the Judge only through the commissioners. If the commissioners are dead or disqualified, so that the supersedeas can not be served upon them, new commissioners should be appointed in order to make an effectual service on them, for there can be no super- sedeas without the writ. Williams, against the petition. Commenced to answer the argument, urged on the other side, that a formal writ of supersedeas was necessary, but — The Coukt stopped him, and desired that he would proceed to the other points, saying that no actual issuing of a writ of supersedeas was necessary here, the Court doing by one act what the Chancellor does by two ; that it was entirely a ques- tion of practice which the Court had a right to regulate ; and that the Clerk of the Court had repeatedly issued certificates, under seal, of the order superseding the commission. Williams, continued — On the former hearing, the interest 116 NOVEMBEK SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. of Henry Morris was admitted, or not disputed, and it is now too late to disturb the proceedings on that ground. These pe- titioners swear they knew nothing of the proceedings until within the last three years, but admit that length of notice. They left the case on Mr. Sansom's petition, and neither made themselves parties to it, nor offered to do so, and the Court having refused to reverse the order for a supersedeas on that petition, they come now, after the lapse of more than a year, to ask that the whole matter may be again reviewed. We are not bound to show title in Henry Morris now ; it is at best a mere matter of form, and does not affect the merits of the case in any, way whatever, and title will be presumed in him after this lapse of time without a denial. But if we are required to show his title, it is manifest — he was the son of the bankrupt, and he was the executor of the executrix of the bankrupt. The legal estate remained in the bankrupt till the assignment was perfected. Doe d. Esdaile v. Mitchell, 2 Maule & Selw. 446. This right being in the bankrupt, if descendible and not devi- sable, it comes to Henry Morris as heir or one of the heirs ; if devisable, then, as executor of his mother, he has sufficient in- terest in the estate to go into the Orphans' Court and ask an order of sale, &c., and to petition this Court for a supersedeas. Coop. B. L. 334 ; Atty. Gen. v. Capell, 2 Shower, 480. The estate remained in the bankrupt's possession over twenty years, and was thereby confirmed to him as against his creditors. Power V. Hollman, 2 Watts' R. 218 ; Diamer v. Sechrist, 1 Penna. R. 419. The petitioners say that they were known creditors, but they were also to be presumed to be paid on account of the lapse of time. Peebles v. Reading, 8 Serg. & Raw. 484. And all Mr. Morris's property now remaining must be considered as surplus, for, from the lapse of time, all the debts must be treated as if paid by the bankrupt or released by the creditors. TiLGHMAN, on the same side. It is now eight years since the supersedeas, during which NOVEMBER SESSIONS, 1836. 117 Robert Morris's Estate, In Bankruptcy. time all things have been as if Robert Morris had never been a bankrupt. At the time of granting the supersedeas, personal notice was given to J. Huston, the petitioning creditor ; and all other creditors were notified by advertisement. These pe- titioners are bound by this notice and by the decree of the Judge precisely as though they had appeared and been heard against the supersedeas. Mr. Rawle became a purchaser on the faith of the superse- deas ; and, since the refusal of Mr. Sansom's petition, he has sold to other parties, who were present at the last hearing of this matter, and purchased on the faith of the decision then made thereon. Eighteen months after the rejection of Mr. Sansom's petition, the present petitioners come forward to dis- turb the security of these innocent purchasers. Fraud and falsehood in obtaining the supersedeas should be alleged and proved before it can be overthrown. Nothing new is pretended to be in the case now that has not been argued before, except that Henry Morris had no interest in the estate of the bank- rupt. To this we answer : 1st, The allegation comes too late, the subject has been passed upon ; 2d, Henry Morris was not alone interested in the petition, but the whole of the heirs of Robert Morris were concerned ; 3d, It is immaterial whether he had any interest or not, the object was simply to bring for- ward the question whether a commission should be superseded or not, and it was the duty of the Judge to look to every per- son who had an interest in the application ; 4th, He had an interest, he was the executor of Robert Morris's executrix. Kline v. Guthart, 2 Penna. R. 490. Meredith, in reply. The former order was made on the supposition of a state of facts which did not exist ; and no notice was given to those who were entitled to it. We cannot doubt that, on our showing the real state of facts, the order will be reversed. The petitioners have an interest in the estate ; they are cre- ditors who have proved their debts under the commission. The 118 NOVEMBER SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. interested parties — the commissioners or assignees — were not made parties to the proceedings which produced the superse- deas ; and no personal notice was given to the creditors residing in the city where the proceedings were held, when, from their local position, they were entitled to it. In the opinion of the Court upon Mr. Sansom's petition, Henry Morris is spoken of and considered as the representa- tive and heir of Robert Morris. It now clearly appears that he had no interest. This is a new fact and a new state of things. As the petitioner had no interest in the estate, it is never too late to come in and show it. The objection of there being a bona fide purchaser extends to part only of the property, and that part was bought with full knowledge of all the circumstances. Parties claiming to be protected in this right must show that they have paid the full consideration money. The former decision was on the grounds : 1st, that Mr. San- som had no interest ; 2d, that Henry Morris had. But now the whole thing is reversed ; the present petitioners have in- terest, and Henry Morris has not. First or last, this thing will be set right. It began in in- justice and must end in retribution. This princely estate cannot be withheld much longer from the creditors of the bankrupt. On the 6th February, 1839, Judge Hopkinson delivered the following opinion in the case. The petitioners in this case are, the assignees of the estate of Jacob Clement, deceased, William Thaw, one of the heirs of Benjamin Thaw, deceased, and T. Gr. Hollingsworth, one of the heirs of Jehu Hollingsworth, deceased. They state them- selves to be creditors of Robert Morris, formerly of the city of Philadelphia. The petition recites the issuing of a commission of bankruptcy against Robert Morris in July, 1801, and the NOVEMBER SESSIONS, 1836. 119 Roliert Morris's Estate, in Bankruptcy. granting of his certificate of discharge on the 4th of Decem- ber of the same year ; hut that no further steps were taken to render the property of the bankrupt available to his creditors, owing, as the petitioners suppose, to the belief that the unin- cumbered property was not sufficient to pay more than the expenses of the proceeding. The petitioners then aver that they have recently learned that certain real estate has been discovered, which is alleged to have been the property of Mr. Morris, at the time of his bankruptcy, and which ought there- fore to be applied to the payment of his debts. They state that they have also learned that a supersedeas of the said com- mission has been granted, upon the application of Henry Mor- ris, stating himself to be one of the children of the bankrupt, but not alleging himself to have any interest in the estate of the bankrupt. That in fact the said Henry had no interest in the estate, as will more fully appear by reference to the wills of the said Robert Morris and his widow Mary Morris, copies of which are annexed to the petition. The petitioners say they had no notice or knowledge of the said application of Henry Morris, or of the granting of the supersedeas, until within the last three years, nor did they or either of them, at any time previous, know or suspect that any proceedings to supersede the said commission had been commenced, or were in contemplation. For these reasons the petitioners pray for a review of the proceedings in reference to the alleged super- sedeas, that it may be vacated, and that commissioners be ap- pointed, the original ones being dead or disqualified, and for such further relief as may be right and just. This petition was filed on the 10th of November, 1838, and a rule granted to show cause, on the 17th, why the prayer of the petition should not be allowed. Notice was accepted by the counsel of Henry Morris, and also by the counsel for William Rawle, Esq., who claims an interest in the property. In the March preceding, a petition was presented by the same peti- tioners, with one other, also stating the facts of the issuing of the commission, of the certificate of discharge, and the cessa- 120 NOVEMBER SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. tion of all further proceedings. It also sets forth the disco- very of property belonging to the bankrupt, and the death or disqualification of the commissioners, and merely prays for the appointment of new commissioners, and for further relief. No reference is made to the supersedeas. On this first petition a rule was granted for a hearing, on a short notice to the heirs and representatives of the bankrupt, but no further proceeding was had upon it, or in relation to the subject, until the 10th day of November following, when the second, or additional, peti- tion was presented and proceeded upon. On a careful review of the opinion I delivered, with great deliberation, and after a most learned and elaborate argument on both sides, on the petition of William Sansom for a revoca- tion of the supersedeas, I see no reason to change that opinion, as the case was then presented. I now repeat what I then said, that the entire novelty of the case, and the importance of the principles involved in it, gave rise to difficulties of a serious and embarrassing nature. I did then hope, as I now do, that the final disposal of it would not rest on my judgment, but that some proceeding would be had, as was intimated by the counsel, to bring the case before another tribunal. No such steps have been taken. The inquiry now is, therefore, limited to the question whether any matter of law or fact has been shown which was not brought into my view at the former hearing, and which, if known, would have produced, or ought now to produce, a different result. The subject of the want of notice of the petition of Henry Morris, and the proceedings thereon, was fully discussed and decided at that hearing ; and I find nothing in the situation of the present petitioners to distinguish them, in this respect, from the petitioner in that case. The same supineness, the same inattention to the affairs of the bankrupt for five-and-twenty years from the bankruptcy, when the petition of Henry Morris was filed ; an entire disregard of that petition and all the pro- ceedings upon it from 1825 to 1838, full thirteen years ; not even roused to it by the movement of Mr. Sansom in 1836, NOVEMBEE SESSIONS, 1836. 121 Robert Morris's Estate, in Banliruptcy. when the discovery of property was publicly disclosed, having the same notice which Mr. Sansom had of the occurrences prior to his application — the same and the only notice which the law required, or indeed was practicable in the case. On this ques- tion of notice they stand in a worse situation than Mr. Sansom. The endeavor to distinguish this case from that decision on the similar petition of Mr. Sansom, in reference to the notice, is this. It is said that these petitioners, having proved their debts under the commission, which Mr. Sansom had not, were entitled to personal notice of the application of Henry Morris ; and, as a further claim to this privilege, it was urged that they resided in the city where the proceedings were going on, some of them within a short distance of the Court. No authority of the law was shown for any such distinction in the rights of creditors. Neither the statute, nor any judicial adjudication, nor any practice, was shown, or is known to me, to give coun- tenance to this argument. One manner of notice — that is, in the public gazette — is provided for all ; and all are bound to attend to it, or the estate of a bankrupt never would or could be settled. In the equity and reason of the thing, the creditors residing in the same city, in the very neighborhood, where the proceedings are going on and the papers published, are less entitled to this personal regard than those who are at a dis- tance. The fact that the present petitioners proved their debts under the commission only puts in a stronger light their sub- sequent abandonment of the commission and of all their expec- tations from it. The ground mainly relied on to support this application to revoke the supersedeas is, that Henry Morris, on whose petition it was ordered, had no right or interest in the estate of the bankrupt, and, therefore, there was no party before the Judge on whose behalf any petition could be received, or any order made in relation to that estate. This objection must be con- sidered and decided. It is well, in the first place, to remark, that Henry Morris, 122 NOVEMBEK SESSIONS, 1836. Robert Morris's Estate, in Bankruptoy. in his petition, makes no false allegation on the subjeet of his interest. He states the fact of his relationship to the bank- rupt, and no more, leaving the question of his interest to those who might choose to deny it, and to the Judge whose right it was to decide it. He cannot, therefore, be charged with de- ceiving or misleading the Judge by a false allegation. His petition was filed in November, 1825, nearly twenty years after the death of his father, and a considerable time before the death of his mother, Mary Morris. The will of Robert Morris was proved and recorded in May, 1806, full thirty years before the argument of the motion for the supersedeas, and, of course, during all that time was in the power of Mr. Sansom, and of the present petitioners, and of all and any of the creditors of Robert Morris, to be used by them, had they chosen to use it, to defeat the application of Henry Morris. The will of Mary Morris had been proved and recorded for nearly ten years at the time of the hearing, but no notice was taken of it. The right of Henry Morris as a petitioner was not brought into question by denial or objection. If the peti- tioner against the supersedeas could waive the objection, he did so ; and the present petitioners never appeared to make it. Under these circumstances, the incapacity of Henry Morris, as a party to a proceeding affecting the property of Robert Morris, is certainly urged at this time by these petitioners with no claim to favor. Nevertheless, if the law gives them the right, they must have it. If, by the law, they may demand the revocation of the supersedeas, no minister of the law can refuse it. The objection is that Henry Morris had no interest whatever in the estate of his father, Robert Morris, and, therefore, could be no party to a proceeding to affect that estate; that the order for the supersedeas was made in behalf of a person who could take nothing by it, and had no right to intermeddle with it. "Was this strictly and truly the case ? Had Henry Morris no interest, present or contingent, sufficient to give him a stand- ing before the Judge on that question ? "Was he so absolutely NOVEMBER SESSIONS, 1836. 123 Robert Morris's Estate, in Bankruptcy. a stranger to it that he might not be heard upon it ? It is clear that Henry Morris, as one of the children of the bank- rupt, after his death, had an interest in his estate, whatever it might be, unless that interest had been taken away from him by some legal act or instrument. The will of Robert Morris is relied upon for that purpose. But a preliminary inquiry is, whether Robert Morris, at the time of his death, had himself such a right and interest in this property as enabled him to devise it. The affirmative of this question is contended for by the petitioners ; and it is argued that, if he had a descendible interest in the land, he had a devisable interest, and that if he had not a descendible interest, Henry Morris could derive none from him, and that, in either case, he had nothing to support his petition. The case in which the principle relied upon by the counsel for the creditors is fully developed and reported is Jones v. Perry, 3d Term Reports, 88. The point decided is thus stated in the syllabus: "A possibility coupled with an interest is de- visable." The case arose upon the construction of the Statute of Wills, which enables persons having an interest in lands, &c., to devise it. That a mere or bare possibility, unaccompanied by an interest, was not devisable, seems to have been admitted ; and the question was as to the kind and degree of interest which, coupled with a possibility, may be the subject of a devise. It is not easy to fix a definite meaning to the word "interest," as here used. Some limitation is clearly intended to be put upon it, for it is said that that which an heir has from the courtesy of his ancestor is but a bare possibility, and has no such interest coupled with it as to be devisable. Yet, if a legal interest can be raised on a calculation of contingencies the most remote and impossible, as in the case before us, it can hardly be denied that the chance of an heir from the courtesy of his ancestor is something better than that of a stranger. I would say that his hope of succession is more rational, more likely to be fulfilled, than any that a bankrupt could have or entertain of the release of his property from the claims of his 124 NOVEMBER SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. creditors, or of a return of it to him as amply as it left him, by a supersedeas of the commission which deprived him of it. From the argument of the judges, as well as the counsel, in the case of Jones v. Perry, we may consider that the principle now contended for was carried as far by the Court as they would be willing to go with it. We shall see that the interest, the contingency, in that case, was by no means so remote or improbable as to bear any comparison with ours. It was this. A house and lot were devised to T., the brother of the testator, until his son John, or any of his younger sons, should attain the age of twenty-one years ; if T. should have no younger son who should arrive at that age, but should have only one son living to that age, then until that son should attain that age. As soon as his said nephew John, or any other younger son of his brother T., should attain the said age, the testator gave the house, &c., to the said John, or such other younger son as for the time being should be a younger son of his said brother T. ; and if the said T. should have but one son who should live to that age, then he devised the house, &c., to that son. The testator died, leaving his brother T. with two sons, the said John and Joseph. John died before his father, and before he was twenty-one years of age. Joseph attained that age, mar- ried, and died, having made his will, by which he devised, in the most broad and general terms, all his property and estate, &c., to his wife. The question was whether Joseph had such an interest in the house and lot mentioned in the will of his uncle as enp,bled him to devise it to his wife. It was decided that he had ; and this is the possibility coupled with an interest which is recognised to be devisable by that decision. Now, we clearly see in that case whence the interest of Joseph was de- rived, and what it was. It was given to him expressly, by the will of his uncle, the first testator, and not by a legal, uncertain, implication. The event on which the interest was to become vested, and the property his, was clearly described; and the event did actually happen. Nor was it so remote or impro- bable as to deserve to be called a mere possibility. It can NOVEMBER SESSIONS, 1836. 125 Kobert Morris's Estate, in Bankruptcy. hardly be said to have been improbable or unexpected. Thomas, the brother of the testator, had, so far as the case informs us, but two sons, John and Joseph, of whom John was the younger. If, then, John should die before attaining the age of twenty- one years, and Thomas, his father, should have no other younger son, the right of Joseph would be complete. This will was made in June, 1734, and John was not of age in 1751, when he died. Of course, he was but a child at the time of making the will, which lessened his chance of reaching twenty-one years. There was certainly nothing strange in the happening of the contingencies upon which the devise to Joseph would take effect, and, of course, his interest was neither remote or improbable ; he had an interest in the estate, with a very fair chance of enjoying it. Can such a case be put in comparison with that under our consideration ? Whence did Mr. Morris derive the interest in this property ; and what was it which it is said he might dispose of by his will, when the commission of bankruptcy was in full force and operation ? Not by any such condition, or contingency, or reservation, in the statute, nor in the assignment of the estate for the use of his creditors, as that by which it is now claimed for him, — not by anything that hap- pened in his lifetime to bring back to him the rights he had wholly and absolutely lost by his bankruptcy. At the time of his death his estate, with all his rights in relation to it, all his interests in it, all his control over it, were entirely vested in others. In the case cited, both the grant and the condition on which it was to take effect were distinctly and expressly de- clared. Because there were in that case both a probability and an interest, can we say that it is so in ours ? If this be no more than doubtful, should I upon it say that Henry Morris has no interest ? Shall I refuse to hear him ? Shall I take from him the means and the opportunity of having that ques- tion deliberaftely tried and decided by a competent tribunal of law and fact ? Why should he not have the opportunity to try this grave question on his father's will ? But, while the commission is in his way, he cannot do so. Let him and the 126 NOVEMBER SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. creditors meet fairly on that question. If the objection urged against him is good and valid, it will prevail against him ; for it was intimated, both on this and the former argument, that the petitioners would not be concluded by my decision, but could have their rights examined and restored to them elsewhere. It is certain that, after his bankruptcy, Mr. Morris had no interest in his property, recognised by the law, which made any act or agreement on his part necessary to the transfer of the pro- perty, with a perfect and unquestionable title. The statute immediately vested all his estate in the commissioners ; and no conveyance by him was called for. The commissioners after- wards assigned it to assignees chosen by the creditors ; and they might afterwards sell to whom they pleased. In all these proceedings the bankrupt has neither lot nor part; he is treated as a stranger, as one who has forfeited all his rights of property by what, legally speaking, was a fraud or an intended fraud upon his creditors. Where is the ground of the sugges- tion that the legal estate remains in him ? Can we believe that, at the time Mr. Morris made his will, be had any view to this property, or to the event which has taken it from his creditors ? It is true, he devises all the property, real or per- sonal, which he then possessed or might afterwards acquire ; but has this description any application to property which he did not possess ? If indeed the commission had been super- seded before his death, the property restored to him would be property afterwards acquired ; but, to the time of his death, he possessed nothing, he acquired nothing. If, therefore, his in- tention is ,to have any influence in the construction of his will, no one, I think, can seriously contend that he looked to an event which would give what is now called a "princely estate" to his wife, in exclusion of all his children. It may be remarked, too, that this probability, this interest (if it may be so called), which is said to be coupled with the possibility, has to pass through two wills with the force and effect of a legal devise, under the general words of all the property, real or personal, possessed by Mr. Morris at the time of his death; NOVEMBER SESSIONS, 1836. 127 Kobert Morris's Estate, in Bankruptcy. and, in the case of Mrs. Morris's will, of all her estate, real and personal ; for, if her devise to her daughter, Mrs. Nixon, does not emhrace it, then she died without disposing of it, and Henry Morris, either as the son of the testator, or of Mrs. Morris, will have his share in it. May we not confidently say, too, of Mrs. Morris, that she had no idea she was giving to one of her children, most abundantly and happily provided for, a great estate, in no part of which did she allow her other children, most especially Henry, who did want it, to partici- pate ? She had no such thing in her mind. In the case of Jones V. Perry, on the contrary, the testator had distinctly and expressly in his view the contingency by which the estate would vest in his nephew Joseph ; and, certainly, he did expect that it might happen, and therefore provided for it. I am aware that on this argument I must encounter a for- midable difficulty. If Robert Morris had no right or interest in this property, how have his children or representatives any, for it is said that whatever is descendible is devisable ? In the first place, this objection does not reach all the parties who appear here, and who appeared on the former occasion, to sus- tain the supersedeas. Some of them are purchasers at a she- riff's sale, under judgments regularly rendered and prosecuted to execution and sale against Robert Morris; and who can have no title if the commission of bankruptcy is restored. They do not claim from or through the children of the bank- rupt. In the second place, I refer to what I said in my former opinion, that " the effect of the supersedeas is to annihilate the commission, and to place the bankrupt, with his estate, in the same situation they would have been had it never existed." But if the bankrupt is not in existence, at the time of the su- persedeas, it can have no effect upon him ; it cannot change his situation in regard to the property. In another place I ob- served, that "the effect of the supersedeas would be to annul the commission, and all that had been done by and under it, and to restore to the representatives of the bankrupt the pro- perty which had not been legally disposed of." The superse- 128 NOVEMBEK SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. deas in this case, for the reason given, could have no effect on the bankrupt or his personal rights ; it could operate only on his estate, for the benefit of his representatives. I do not con- sider their right as descending from him, but as being cast upon them by the law by an event which, occurring after the death of the bankrupt, vested no rights or interests in him. The right arose by and from the supersedeas, and had no existence before or without it. It has been likened to a bankrupt's in- terest in a surplus. I grant that the bankrupt had what may be called an interest in the surplus, if any, of his estate ; al- though I should rather say that such surplus would enure to his benefit — would return to him. But this is not a surplus. It does not come to the bankrupt by the same event that would entitle him to' the surplus, nor by the same proceedings, nor by virtue of the same legal principles that would restore to him a surplus after the payment of the debts charged upon his es- tate. The debts for which the property was taken from him being satisfied, the surplus remains without any claimant in law or equity but himself. I have, perhaps with more labor than they deserved, given the views which occurred to me on this part of the case. I cannot say that they are altogether satisfactory to myself, nor that they have removed entirely the difiiculties of the argu- ment ; I should hardly be content to rest adecision upon them. But I will nevertheless say, that I am still less satisfied with the argument to show that Mr. Morris had anything more than a bare possibility of getting back his property from his credi- tors by this, or any other, contingency ; and that such a pos- sibility gave him any right or interest in the property, which he could transmit to another, either by an assignment or a devise. Admitting the devise in the will of Robert Morris to be valid and effectual in relation to this property, has Henry Morris any interest in it, which will support him as a party in these proceedings ? The objection raised against him is purely tech- nical and formal, for the real and substantial questions upon NOVEMBER SESSIONS, 1836. 129 Kobert Morris's Estate, in Bankruptcy. the supersedeas, were as fully argued and considered ■with the creditors, or a creditor having the rights of others, on the one side and Henry Morris on the other, as they could have been with any other party. In such circumstances I shall look with a close and willing eye to discover enough of interest to give Henry Morris a standing before me, to give him a right to be heard on his application. " If the scale do turn but in the es- timation of a hair," I shall be satisfied. It is by meting such a measure to him that his right is denied, and he may defend it in the same way. It should be recollected that the whole case was fully and ably argued and carefully examined ; that the on\j creditor of Mr. Morris who appeared to assert any right to his property, chose to meet Henry Morris as a party to the cause, as his authorized adversary ; that he made no ob- jection to the original application for the supersedeas on the ground of a want of right or interest in Henry Morris to make it; that these petitioners, and all the other creditors of the bankrupt, had then an opportunity to appear and make this, or any other, objection to the supersedeas ; but they left it all to the management of Mr. Sansom, and can we say now that this objection is entitled to any favor ? If the hundred credi- tors of Kobert Morris, who proved their debts under the com- mission, or the many hundreds who did not, may, year after year, or at intervals of many years, come forward singly, or in little parties of three or four, to start new objections to dis- turb and annul all that had before been solemnly and publicly done, it is impossible that this estate can ever be settled, or the rights of the family of the bankrupt, or of bona fide pur- chasers, be ever safe and at rest. Without meaning to insist upon it as a substantial ground, but rather as a set-ofi", or equivalent, for the argument of the petitioners, we may ask whether Henry Morris had not some- thing like an interest, something like a reasonable expectancy, under the will of his father ? He gave all his property to his wife, Mary Morris, saying, that " no doubt she will make such distribution of it amongst our children as she may think proper." 9 130 NOVEMBEE SESSIONS, 1836. Eobert Morris's Estate, in Bankruptcy. This is, at least, a strong recommendation, amounting almost to an injunction, that the property should be divided amongst the children. Henry Morris was one of them; and the pro- bability of his obtaining a share under this recommendation, was not a right it is true, I will not say it was a legal interest, but it was a better contingency than that on which the peti- tioners rely. At the time Henry Morris filed his petition for the superse- deas, his mother was living, and he had no interest or expecta- tion from his father's estate, but that which depended on the hope that his mother would carry out the recommendation of his father, by a distribution of it amongst their children. It would be enough for the present purpose if, as one of these children, he had a right to bring up the question whether the commission of bankruptcy against his father should continue in force, and whether the conduct of the creditors, and other circumstances of the case, did not warrant a supersedeas of the commission. But another claim, as a party to these proceedings, has been set up for him ; to wit, as the executor of the mother, Mary Morris. His petition alleges " that the said Robert Morris, at the time of his bankruptcy, was seised and possessed of a large estate, real and personal, which, in consequence of the neglect of the said creditors and assignees in not duly prose- cuting the said commission, has been wasted and misapplied." This allegation was neither disproved nor denied. Mary Mor- ris, under the will of Robert Morris, was entitled to all the real and personal estate which belonged to him at the time of his death, and to whatever right and interest he had therein. Mary Morris died about the month of February, 1827, appoint- ing her sons Thomas and Henry her executors. Can it be questioned that Henry Morris, as the executor of his mother, had an interest in the personal estate, at least, devised to her by her husband ; and that he might be a party to any proceed- ing for the recovery or protection of that estate ? Even in regard to the real estate, the laws of Pennsylvania, in certain circumstances and for certain purposes, give an executor an NOVEMBBK SESSIONS, 1836. 131 Eobert Morris's Estate, in Bankruptcy. authority over the real estate of his testator. The answer given to this assertion of right is, that at the time Henry Mor- ris filed his petition and commenced this proceeding, his mother ■was not dead, and, of course, he was not her executor. I see no force in this reply. A petition in a proceeding of this sort is not like a suit at common law, in which the party must have his right of action when he commences it. May not a person who acquires an interest in a suit depending in Chancery, after its commencement, come in and be made a party ? Even to satisfy the most scrupulous form, it was only necessary that Henry Morris should file another petition, or in some way suggest to the Judge, for there is no record, strictly speaking, of this proceeding, the new and additional capacity in which he presented his claim. The true questions or matters on which he prayed for a supersedeas of the commission were set forth in his petition, and the creditors had notice of it. No new matter of complaint was introduced, no surprise upon his adversaries, no new person as a party ; but at the time of the hearing, a new right or interest had accrued to the petitioner, not in the least afi"ecting the merits of the controversy — they remained the same. The creditors, or those of them who chose to appear on the notice, knew, for it was a matter of record and notoriety, of the death of Mary Morris, and the appoint- ment of her executor. They go on to a hearing, without ob- jection to the right or interest of the petitioner, without calling upon him to set out formally his claim in his new capacity, or inquiring in what right or capacity he was prosecuting it. Was not this a waiver of the form of filing a new petition ? Did not they consent to meet his claim as it was in truth, and under any right he had ft) prosecute it ? I think that, even if it were material, it has been waived. Such an objection could not be kept in reserve, to be resorted to if the petitioner should be successful. At the time of the hearing, and long before, Henry Morris had the right of a party in this proceeding, in fact and in law; his right was recognised by meeting and answering it without objection, and it would be a strange sort 132 NOVEMBEE SESSIONS, 1836. Eobert Morris's Estate, in Bankruptcy. of equity if I were now to undo all that has been done on this ground. In answer to this objection the petitioner has urged that his petition was depending five years without any opposi- tion or appearance by any creditor. The application of the petitioner was renewed in 1830, after the death of Mrs. Morris, and still no opposition to it from any quarter, and so it went on to the hearing and order thereupon, and so it continued for eight years after that order without objection; and so it was on the hearing of Mr. Sansom without any objection to Henry Morris as a party. Is it not obvious that if in Mr. Sansom's petition, in which he stood for the rights of all the creditors (for none came to join him), this objection had been taken, it would have been at once obviated by allowing Henry Morris to file a supplemental petition ? It would be the grossest in- justice to admit it now. Even in the more strict proceedings at common law, a waiver of an objection at the time it ought to have been made, will, in many instances stronger than this, preclude the party from a subsequent resort to it. Indeed, in the first petition filed by these petitioners, no suggestion is made of this objection, nor until eight months afterwards. Year after year, opportunity after opportunity, were afi"orded to these petitioners to oppose the petition of Henry Morris, on this or any other ground, but they do not move or speak, until more than ten years had elapsed from the date of the order of supersedeas, and then they appear, relying on the allegation that Henry Morris had no interest in the property when he filed his petition, not denying, for it could not be denied, that he had a clear interest at the time of the hearing and order. Is there any right that a man holds or enjoys by the law, that he may not lose by neglect ; that he may not surrender by abandonment ? Debts secured by the most solemn con- tracts, by official records ; unquestioned titles to real estates, of any amount and value, even if they should be " princely," may be and have been irrecoverably lost solely and merely by the inattention of the owner. The peace and order of society, the security of the whole community require this, and no in- NOVEMBER SESSIONS, 1836. 133 Robert Morris's Estate, in Bankruptcy. dividual, who may suffer by it, has any just cause of complaint or reproach, except against himself. For seven-and-thirty years, not without warnings and notice, did these petitioners sleep over the rights they had acquired in the property of Mr. Morris, by his bankruptcy ; and they now wake up and ex- pect to find these rights fresh and unimpaired ! Not much more than half of this time would have, with the same neglect, swallowed up their mortgages and judgments, their lands and tenements. I know not what there is in their right to a bank- rupt's property that will preserve it from the destruction that would have buried their right to their own. The bankrupt law is so far from countenancing neglect and delay in the proceedings on the part of the creditors, that it requires extraordinary promptness to bring them to a close, that the bankrupt and his estate may not be wronged by an unreasonable delay. If the commission is not proceeded upon, in its preliminary proofs for declaring the party a bankrupt, in thirty days, the judge may supersede it. The assignees are directed to make a dividend of the effects within twelve months frpm the issuing of the commission ; and the second dividend within eighteen months, which is to be the final divi- dend, unless there be a suit depending, or some part of the estate standing out, or other effects shall afterwards come to their hands. The whole proceeding is intended to be finished and closed in eighteen months. As the counsel for these petitioners thinks that the proceed- ings by which the commission of bankruptcy against Robert Morris was superseded, " began in injustice, and must end in retribution," it is a consolation to me as well as to him, to know that, if I am mistaken in my views of the matter, " first or last they will be set right ; and that the princely estate of the bankrupt cannot be much longer withheld from his credi- tors." I am by no means desirous that the grave questions which have arisen in the course of these proceedings, or any man's property, princely or mean, shall be finally disposed of by my judgment. It is, however, to be regretted, for it has 134 NOVEMBER SESSIONS, 1836. Robert Morris's Estate, in Bankruptcy. produced much trouble and expense, that these creditors never thought this great estate, as it is now supposed to be, worth looking after for seven-and-thirty years; that they should have abandoned it ; that no one of them, or of the other nume- rous creditors of the bankrupt, would hazard the expenses of executing the commission, to put them in possession of this principality. The assignees appointed refused to take it into their care and management ; would not accept the trust which all thought so worthless ; nor did the creditors think it worth their time or money to appoint other assignees. I shall \3ismiss both the petitions. DISTRICT COURT OF THE UNITED STATES. (Buinn iistrirt nf f EiiiiBiilnEiiiii. FEBEUART SESSIONS, 1837. THE UNITED STATES OE AMERICA V. CHARLES J. INGERSOLL, ESQUIRE. 1. The aUowance of costs to a District Attorney is altogether in the jurisdic- tion of the Judge, and not within the power of the officers of the Treasury. 2. Under the provisions of the Act of 3d March, 1797, a District Attorney's claim for a credit for costs, not taxed, hut taxable, cannot be admitted on a trial, unless it has been presented to and disallowed by the accounting officers of the Treasury. 3. Where a defendant has pleaded payment, and, at the trial, adopts such a course as to throw the whole affirmative proof on the plaintiff, the plain- tiff has the right to reply. 4. The discharge of a debtor, before or after judgment, is not, of itself, a ground of charge upon a District Attorney. 5. A District Attorney is liable for money actually received by him, or which has been lost by his unwarranted neglect ; but he is not answerable for the default, inattention, or frauds of the Marshal. 6. Charges by a District Attorney for what are called extra official services rendered by him to other subordinate officers of the government, on their application and request ; which are not provided for by any Act of Congress ; and were not performed on the call or requisition of either of the Execu- tive Departments, and have not been sanctioned by them, or either of them ; and which are not sustained by a usage so certain, uniform, and notorious as to be understood and known to both parties, so as, in effect, to be taken as part of the contracts ; should not be allowed as a credit or charge against the United States. 7. Where the United States succeed to a claim of their debtor which is in suit against a third party, and the action is prosecuted to a termination in the Supreme Court of the United States, by a District Attorney, by order of the government, he is entitled to a fee from the United States, for his services therein. 136 FEBEUAEY SESSIONS, 1837. The United States v. IngersoU. In the year 1815, the defendant was appointed Attorney of the United States, for the Eastern District of Pennsylvania. Many bonds, taken by Collectors before that time, were trans- ferred to him by his predecessor. These, together with bonds taken by Collectors during his attorneyship, and given to him for suit, and various other official transactions, created an ac- count between the defendant and the United States, consisting of a great number of items, and involving very large sums of money. Notwithstanding the efforts of the defendant, this account became more and more involved, and no effectual attempt seemed to be made by the proper officers to bring about the regular periodical settlements. Various letters from Mr. IngersoU on the subject, ranging from the 26th July, 1815, to the date of the present suit, were produced at the trial, all urging the officers at "Washington to a settlement. Among others, a letter dated 15th June, 1831, was addressed to the First Comptroller of the Treasury by the defendaint, in which he stated that he then held the sum of |7,971 14 in trust for the United States, that he would make use of that deposit to procure justice, and apprised the Comptroller that he would forthwith apply it to his own use and indemnity, re- questing that no time might be lost in commencing suit against him on that ground. This action, which was for money had and received, was commenced on the 25th May, 1836. The defendant pleaded payment and set-off, with leave to give special matter in evi- dence. The account as stated by the plaintiffs charged the defendant with $2,785,939 04 And credited him with . Leaving due to the plaintiffs, On which they charged interest, . Making the whole amount claimed. 2,748,047 33 37,891 71 38,599 29 876,491 00 The defendant acknowledged the following debts : FEBKUAEY SESSIONS, 1837. 137 The United States v. Ingersoll. Amount received in Toler v. Armstrong, .... §3,158 82 " " on bonds of Kodman and Wain, §5,487 86 Interest, &c 2,483 28 7,971 14 Interest on that amount to date of suit 493 42 Amount receiyed from Kinsman and Wright, . §2,023 43 Less, fees and costs, &o., 344 36 1,679 07 §13,302 45 And claimed credits as follows : Costs in revenue cases, taxed §1,740 05 " " criminal (tea and forgery) oases taxed, 5,083 20 §6,823 25 Fees in Conard's oases, 1000 00 Fee in Toler y. Armstong 1000 00 Fee in Amelia Island cases, 1000 00 Fees in militia cases, 1000 00 Fees for extra official services, from 1815 to 1829, . . 11,675 00 Moiety of Edw. Thompson's forfeitures 12,500 00 §34,998 25 Leaving due to defendant a balance of §21,695 50. The plaintiffs founded % portion of their claim on the fact that the defendant had marked certain suits as satisfied, with- out receiving the full amount due, and they claimed damages for this negligence of their attorney. In regard to the item of taxed costs claimed by the defen- dant, it was shown that Mr. Ingersoll had given to the Marshal his receipts for the amount in order that that officer might have vouchers for his requisitions on the Treasury; and that, the Marshal being a defaulter, the Treasury took the receipts in question and then passed the amounts to the Marshal's credit, to balance his debts to the government. On the 16th March, 1837, the case came on for trial before Judge HoPKiNSON and a special jury. It was argued by Gil- pin, District Attorney, for the United States, and J. R. Inger- soll and 0. J. Ingersoll for the defendant. 138 FEBRUARY SESSIONS, 1837. The United States v. IngersoU. During the trial, and in the course of the evidence, the fol- lowing points arose. On the 22d March, the defendant put in evidence a letter from the First Comptroller of the Treasury to the Marshal of the Eastern District of Pennsylvania, dated 7th April, 1828, in which the payment of the Clerk's and Marshal's costs in certain suits was directed, while those of the District Attorney were to be retained till further orders. Judge HoPKiNSON. The Treasury officers have nothing to do with the allowance of costs. The law directs the Judge to certify what is to be allowed. On the same day, the defendant offered to give evidence of a set-off consisting of attorneys' fees, not taxed, but taxable. Gilpin objected, because the item had never been presented to and disallowed by the Treasury. And the matter was passed over for that time. On the 23d March, the defendant's counsel again offered the evidence. C. J. Insersoll, for defendant.. This is not a case under the Act of Congress of 3d March, 1797, 1 Story's Laws, 464. The defendant does not hold any money as a receiver of public money. He is an individual who happens to have money in his hands, and is sued for it The Act only refers to officers who have money to disburse The first, second, and third sections refer to revenue and dis bursing officers ; and while the fourth section refers to indivi- duals, it does not reach this case. These are taxable costs, They cannot be presented to the Treasury, for that department has nothing to do with them. The certificate of the Judge is all that is required to allow them. United States v. Buford, 3 Pet. R. 29 ; United States v. Jones, 8 Pet, R. 383 ; United States V. Robeson, 9 Pet. R. 325. Gilpin, for the United States. FEBRUARY SESSIONS, 1837. 139 The United States v. IngeraoU. The defendant is a person accountable for public money. He receives as much as the Collector. He is here charged as a public officer. His accounts have been adjusted at his own request. These three points bring the defendant within the first three sections of the law ; and the fourth section applies to suits against any individual. The defendant has presented all his claims at the Treasury but this one, and they have been regularly disallowed. The whole reason of the law applies to this case. It intended that the Treasury should settle all just claims without controversy, unless it was impossible to procure vouchers, or accident prevented their procurement. This is not only the statute, but also the decision of the Supreme Court in United States v. Robeson, 9 Pet. R. 325. It was not here impossible to procure the vouchers, nor did accident prevent their procurement; and the defendant cannot avail himself of the exception, as he does not come within either of the reasons on which it is founded. The fact that the costs are ascertained by the Court is no reason to take the case out of the Act. The Marshal's costs are ascertained in the same way ; and if the rule now contended for is valid, his accounts could never be settled at the Treasury. While Congress made the taxing by the Court conclusive evidence of the debt, yet that evidence must be regularly offered at the proper place. The cases cited from 3d and 9th Peters's Reports do not apply to us in this suit ; and see United States v. Duval, Gilpin's R. 356. J. R. Ingbrsoll, for defendant. The only case in which the credit claimed must be presented to the Treasury is where the Treasury transcript is made evi- dence. The transcripts are never evidence except where the account is of such a nature that it necessarily arises at the Treasury. ^It is only to such cases that any of the provisions of the law apply. These costs never could have come within the knowledge of the officers of the Treasury. Act of 8th May, 1792, 1 Story's Laws, 257 ; Act of 28th February, 1799, 140 FEBKUAKY SESSIONS, 1837. The United States v. IngersoU. 1 Story's Laws, 569. Above all, the Act of 3d March, 1797, only refers to receivers of public money, which District Attor- neys are not. The Court reserved the point for future consideration. On the 25th March, Judge Hopkinson said, " As to the point reserved on Thursday, I cannot admit the item. It has not been submitted to the Treasury." On the 23d March, the defendant's counsel asked the opinion of the Court in regard to the right of reply. J. R. Ingeesoll, for defendant. Whether the United States or the defendant is to commence, I conclude. The plea of payment always gives the right to begin and reply. Latapee v. Pecholier, 2 "Wash. C. C. Rep. 180 ; Norris v. North American Insurance Company, 3 Yeates, 84 ; United States v. Thompson, Gilpin's R. 614. Judge Hopkinson. If this case had gone on merely on the pleadings, it would have been a different matter. But here the defendant has forced the District Attorney to prove his whole case at the outset as fully as if the plea had been non assumpsit. He objected to the Treasury transcripts, and the District Attorney went through the proof carefully and from various sources. The affirmative was thrown entirely on him ; and the evidence of the defendant, except as to the set-off, has been confined to disproving the District Attorney's allegations. The plaintiffs have the right to conclude. The evidence having been closed on the 29th March, the District Attorney commenced summing up. Gilpin, District Attorney, for the United States. The first thing required here is to accurately understand the plaintiff's claim. I do not pretend that all the items are of equal validity ; some ought to be yielded. Our account was' made from the best data, which are far from being perfect. PEBKUAKY SESSIONS, 1837. 141 The TJnited States v. Ingersoll. The claim of the United States is for $37,891 71 principal, and $38,599 29 interest, being, altogether, $76,491 00. The items have been all exhibited, and the charges arise from the defendant's neglect, the suit being founded upon the principle that an attorney is liable to his client for loss suifered by his negligence. On the other hand the defendant, having charged himself with but $13,302 45, claims an offset of $34,998 25, for various items — principally for services rendered. This is the ■whole case, and on the evidence offered by either party, .sub- ject to the direction of the Court on the legal points which may arise, the jury must decide the matter. C. J. Ingersoll, for defendant. The claims of the plaintiffs are all more than six, some more than twenty years old, which will account for the obscurity attending them. I agree to the law as laid down by the Dis- trict Attorney, but I must ask that, as there is no limitation against the United States, the jury will not condemn the de- fendant because of doubts or obscurity as to the circumstances of the items. The burthen of proof is on the plaintiffs ; the plea of payment was put in to throw that burthen on the de- fendant, but, under the turn which the Court have given to the proceedings, the plaintiffs are only entitled to what they prove to be actually due. The principle on which the plaintiffs' case rests is that the defendant's negligence has caused loss to the United States. That is, they must have sustained loss by the defendant's neglect, and this negligence must be strong — what no man in his senses would do — for as the Collector and other similar officers are not held liable for losses arising from honest errors — as in the case of the sureties taken by a Collector becoming suddenly bankrupt — neither should a District Attorney be held so liable. The sums admitted to be due by the defendant have been stated to the jury, and they must decide, from the evidence 142 FEBEUARY SESSIONS, 1837. The United States v. Ingersoll. before them, whetlier the defendant is chargeable on the other items pressed by the District Attorney. Now examine the defendant's set-off. The first two items of $1,740 05 and $5,083 20, are for costs allowed by the law, but applied by the United States to pay an- other man's debts. The third item, of $1000, is for fees in suits for the government, under the Act of 28th February, 1795 (1st Story's Laws, 389), and is for a less amount than is charged by any other person. It is urged that the defendant was employed by the Marshal, and not by the government ; nevertheless, the United States are liable. Act of 28th February, 1795; Act of 2d February, 1813 (2d Story's Laws, 1291) ; Eeport to Congress on Militia Fines in Pennsylvania, 25th April, 1822. The fourth item is for a fee in a case acknowledged by the government, but in which they only allow the defendant $850, and he now appeals to the jury to say whether that is a suffi- cient amount. The fifth item is for a fee in a case which the government prosecuted under a citizen's name. The sixth and seventh items are for services in suits prose- cuted at Washington for the government ; the assistance of the Attorney-General was refused, the defendant was alone in difficult and voluminous suits, and it is in evidence that his successor has received $1,500 for subsequent and less services in the same matter. The eighth item is for fees for extra official services for four- teen years ; it is about $800 a year. The defendant does not stand on common ground as to this charge. It is in evidence that he notified the Comptroller on the 26th June, 1815, of his charges ; that on the 18th July, 1815, they were autho- rized ; that on the 12th June, 1816, the Secretary of the Treasury said there were various services which were not com- prised in the general allowance, and which the Comptroller was to revise and pass when certified by the Auditor. The Secretary ordered the Comptroller to allow all that there was law for, and there is law for these, proved as they are. United States PEBEUARY SESSIONS, 1837. 143 The United States'!). IngersoU. V. Wilkins, 6 Wheaton's R. 135; United States v. Duval, Gilpin's R. 356 ; United States v. Fillebrown, 7 Pet. 28, 50 ; Lyncli V. The Commonwealth, 16th Serg. and Raw. 368 ; The Apollon, 9 Wheat, 376 ; Morris v. Hunt. 1 Chitt. Pr. Gas. 544. It is scarcely necessary to cite cases to show that the United States had no right to pay the Marshal's deficit with the defen- dant's money. Yet it will appear more fully by Bartlett v. Pentland, 10 B. & 0. 760; Hogg v. Snath, 1 Taunt. 347; Howard v. Chapman, 4 Carr. & P. 508 ; Scott v. Irvine, 1 B. & Adol. 605 ; Vise v. Clark, 5 Carr. & P. 403. As to the charge of interest, there is no right to make it unless the defendant improperly withheld money belonging to the plaintiffs, which he did not. Arnott v. Redfern, 3 Bing. 353 ; Dubelloix v. Waterpark, 1 Dowl. & Ry. 16 ; Uhland v. Uhland, 17 Serg. & Raw. 269 ; Harrington v. Hoggart, 1 B. & Adol. 577 ; Bainbridge v. Wilcocks, 1 Baldw. 542. If interest is chargeable against the defendant, it is also chargeable for him on an amount of $34,998 25. It is admitted that the defendant is chargeable with various sums (which Mr. IngersoU stated at length), amounting in the whole to $13,302 45, as already stated. J. R. Inseksoll, on the same side. The defendant Was District Attorney at a very important period, and was in office for fourteen years. Numerous officers of the government, in various capacities, were relying on the defendant's advice to govern their conduct, and on that alone they acted. Eight years after he left the office, this suit was brought. During all that time no charge had been made that he retained public money, although he had given notice that he did so. He had presented his claims year after year ; he had begged for suit, and it was not brought till the officers were fairly goaded into it. The defendant wished to be sued, be- cause he knew that time deprived him of his chances of proof ; death or fire might have taken from him every particle of his 144 FEBEUAKY SESSIONS, 1837. The United States v. IngersoU. evidence. He went boldly before a committee of Congress ; and, when his affairs came to the notice of that body, they saw that the accounting officers had been guilty of great negligence, and so they reported. Thus urged, the plaintiffs set to work to make an account. They had no proofs of his indebtedness at the Treasury, and they sent a fishing commission here to search for charges ; they go back to the earliest times ; to the Collectorships of men who were dead before the defendant came to office. At first, they charged the defendant with up- wards of $1,900,000. This was so absurd that they had to reduce it ; and they now sue for a sum a little over thirty-five thousand dollars. The plaintiffs' claim rests on four principles, as follows : 1. Claims growing out of alleged official misconduct and neglect on the part of the defendant. 2. A refusal to allow the regular costs due for the official business of the District Attorney. 3. A refusal of just compensation for meritorious services rendered by the defendant at the request of government. 4. A refusal of indemnity for the unjust act of their officers in taking away bonds on which the defendant had a just lien for services rendered. The claims under the first of these principles amount to some $32,000, and are in the main obliterated by the evidence. The defendant has admitted that he is to account for about $13,000; this he meets by counter claims, similar to those allowed counsel in like cases, and which leave a balance in his favor of over $10,000. If we add to this the claim for a moiety of Thompson's forfeitures, amounting to $12,500, we have a balance in his favor of over $23,000. The earliest receipt of the money now retained by the de- fendant, was in 1826 ; before that time these claims had been regularly certified to and presented. The charges against the defendant are not for money proved to have been received— there is no proof of that— bvit they arise from the alleged negligence of the defendant, and from PEBKUAEY SESSIONS, 1837. 145 The TTnited States v. Ingersoll. suits having been wrongfully settled, compromised, or marked satisfied by him. There is no wrong in entering satisfaction unless there is collusion to do so without any actual payment, or authority from the principal. An attorney has no means of proving the directions given him to enter satisfaction, or not to bring suit. It must first be shown that he had instruc- tions and neglected them ; we are not at liberty first to presume that he had no instructions for an act, and then make him liable for doing it. To make the defendant liable, there must have been neglect, and there must have been loss. We do not say that there must be exact evidence of these, but there must be some evi- dence of both. Look for a moment at the character of the claims which are given to a District Attorney for suit ; they are almost uniformly desperate. No merchant comes to such a pass as to be unable to meet his bonds given to the United States, unless he is re- duced to the greatest difficulty and necessity. All these suits are against insolvent men, and the very fact of insolvency gives to the United States all the debtor's property, to the preference of every other creditor whatever. If, then, a District Attorney fails to recover the amounts due, the presumption is (if there is no evidence to contradict it), not that he has neglected to obtain the full amount, but that it was impossible to do so. There must be both gross neglect and loss. Smeed's Exors. V. Elmendorf, 3d Johns. 185 ; Gilbert v. Williams, 8th Mass. 57 ; Dearborn v. Dearborn, 15th Mass. 316 ; Russell v. Palmer, 2d Wils. 325; Pitt v. Yalden, 4th Burr. 2061; Huntington v. Rumnill, 3d Day R. 390 ; Eccles v. Sheveson, 3d Bibb R. 517 ; Alexander v. Macauley, 4th T. R. 611. The defendant was in office for nearly fifteen years, the num- ber of suits brought by him were 4087, and, with all the exer- tions of government to make them more, the number of mistakes alleged against him are surprisingly small. I now proceed to the defendant's claims. Taxed costs in civil cases. These are settled by law. They 10 146 FEBKUART SESSIONS, 1837. The United States v. IngersoU. are regularly taxed ; and those due to the Clerk and Marshal, from the same cases, have been paid. They have been refused to the defendant because of the unsettled state of his accounts. Taxed costs in criminal cases. This charge arises altogether from the neglect of the government oflScers, for there never was any objection to the claim. The defendant gave a receipt to an agent to enable him to receive the money. The Treasury officers took the receipt but refused the payment, applying the amount as a credit to the account of the agent — the Marshal. Now in law, this power to receive money did not authorize the agent to surrender the receipt for a mere credit ; he had a right to ask for the money, and without it the receipt was not to be resigned. It was given up without payment, but the defendant cannot be made to suffer for this. Extra official services. Where such services are rendered by a District Attorney, he is entitled to a fair compensation. The distribution and compensation of duties do not depend on positive law, but on the discretion of the head of the Depart- ment for which they are done. U. S. v. Macdaniel, 7 Pet. 14. And this usage governs past transactions. U. S. v. Ripley, 7 Pet. 18. Wherever services are necessary and un- expected, they are to be compensated according to usage. The compensation must be fair, and the service necessary, or sanc- tioned by the government. U. S. v. Duval, Gilpin's R. 395. And funds in the hands of a party rendering such services may be retained to meet the compensation. U. S. v. Mac- daniel, 7 Pet. 14. The services rendered by the defendant were meritorious and valuable. They were expressly stated to the Comptroller of the Treasury as early as the 1st July, 1822, on a request from him that the exact nature of the ser- vices should be explained, and were accompanied by certificates from the Collectors, &c., to whom they were rendered. In 1816, the defendant wrote to the Comptroller to know whether he should perform these services, and how he was to be paid for them. The Comptroller told him he was to perform them and retain the compensation out of the moneys in his hands ; PEBKUAEY SESSIONS, 1837. 147 The United States v. Ingersoll. but when, in 1822, the defendant sends his accounts he receives no answer till the 3d March, 1824, and then he is told they have been received, " and will meet with due consideration." This retaining an account for two years will make the party retaining it liable for its amount. After numerous applications by the defendant, the Comptroller writes him, on the 31st August, 1830, " when your claims are acted upon, you shall be advised of the result." The defendant now appeals to the jury to make the settlement which has been evaded by the government. What are extra official services ? Official services are defined by law. See Act of 24th September, 1789, § 35 (1st Story's Laws, 67). The Attorney in each district is to prosecute crimes against the United States, and all civil actions in which the United States are concerned, except in suits in the Supreme Court ; and for his compensation is to receive fees taxed. He has, then, nothing to do with business out of court, as advice to government officers, &c. His duties, 1st, must be within the district ; 2d, must be the prosecution of crimes against the United States, or, 3d, must be for civil suits in which the United States are concerned. The compensation given by law is that for the suits brought in court, together with the per diem. Suits are paid for out of their proceeds, attendance at court out of the allowance therefor. The legal compensation is adapted to the services positively required by law, and to nothing more. For undefined employment there is an unde- fined compensation ; the only question is, who is to pay it ? When a government officer calls on a professional man for ad- vice for the benefit of government, the party benefitted must pay for it. People v. Vanwyck, 4 Cowen, 260. These services were matter of contract between the defen- dant and the government. It is in evidence that immediately defendant was appointed District Attorney, he entered on extra services ; that he announced this to the Comptroller, stated what certificates of such services he would send, and what compensation be would ask ; and that to this the Comp- 148 FEBKUAEY SESSIONS, 1837. The United States ». Ingersoll. troller agreed. But even if all this was not in evidence the implied contract ■which would arise from the performance of the services would suit the defendant equally well. The right to retain a just compensation for such services out of funds in the defendant's hands has been clearly recognised. TJ. S. V. Wilkins, 6 Wheaton, 135. Now as the defendant had a right to retain this money, surely there is no right to charge him for doing so ; no right to impose interest upon him when he kept the money with the plaintiffs' consent, and was waiting to settle his account at any moment. The defendant's demand is also sanctioned by what appears to have taken place in every analogous case, according to the evidence given. As to the fee claimed in Toler v. Armstrong, the facts as proved are fully sufficient to justify the demand. The United States succeeded Toler in his suit against Armstrong. They succeeded to the charges incident to the suit as well as to the benefits. One of these charges was for professional compensation, and this charge fairly attends the suit in the hands of the United States. Now, let us look at the claim of $12,500 for a moiety of Thompson's forfeitures. What has been proved as to this charge? The collector in Delaware made certain seizures, and was entitled thereon to certain forfeitures. He employed the defendant as his counsel, and agreed to allow him a certain proportion of those forfeitures, giving him a bond therefor. The defendant had also certain bonds in his possession, given by parties whose goods had been seized, and out of which he could have obtained the amount agreed to be paid him. These bonds the United States took out of his hands. I agree that they had a right to withdraw the bonds ; but, doing so, they took them subject to the defendant's lien thereon, and this lien is now claimed as a set-off. Gallagher's Ex'rs v. Roberts, 1 Wash. C. C. R. 320. GriLPiN, for the United States, in reply. FEBRUARY SESSIONS, 1837. 149 The United States v. IngersoU. We ■will first see what the facts of the case are, and then examine the law applicable to them. The demand of the United States is for a principal amount of $37,891 71, and interest thereon amounting to $38,,599 29. It arises from fifty-four sets of items, and is money charged to have been received by Mr. IngersoU for the plaintiffs, and not paid over,' or not collected when he should have collected it. The defendant has admitted the following sums to be due to the United States, subject to his set-off: that is, Money received on Eodman & Wain's 'bonds, . . 557,971 14 Accumulation thereon, . . . 493 42 " " in Toler v. Armstrong, . . . 3,158 82 " " on Kinsman's account, . . . 1,679 07 *13,302 45 If there are other sums due, they must be added to this amount. We contend that $4,951 44, principal, and $2,475 66, inte- rest, must be added to the amount chargeable on Eodman & Wain's bonds. The facts, as proved, and on which this claim is rested, are simply these. On the settlement of the bonds in question, the defendant gave them up on the payment of $4,951 44 less than the amount due on them, having, as he alleged, compromised the matter for the amount of $7,971 14, because the bonds were partly invalid, or, at least, of doubt- ful validity, although he had judgments thereon for the full amount due. He also produced a receipt from the Collector for $7,971 14, in full of Rodman & Wain's bonds, but it is in evidence that the receipt was given under a promise by Mr. IngersoU to correct any mistakes on his part ; that the check he gave the Collector for that amount was offered to be re- turned to him on the mistake being discovered ; that he refused to receive it ; that it was never presented for payment ; that the defendant has stopped the payment thereof, and has in- 150 FEBKUARY SESSIONS, 1837. The United States v. Ingersoll. vested the sum of $7,971 14 in trust for the United States. On these facts, and subject to the opinion of the Court on the law, we think that on this item $4,951 44, principal, and $2,475 66, interest, should be added to the $13,302 45 admitted by the defendant. (The District Attorney then urged other items to be added, amounting to $1,310 75, principal, and $1,364 09, interest, and continued.) The facts of these cases are that the defendant has entered satisfaction, released the liability of debtors to the United States, given up securities, or neglected to bring suits, without authority, and made compromises against his instructions and duty. All this is a clear violation of law. It amounts to the fullest degree of negligence ; and he is answerable for it. 1. It would amount to negligence suflSeient to charge an attorney in a common suit ; and so it should be, for the client submits everything to his attorney. Negligence is doing that which a skilful attorney ought to know he should not do, or leaving that undone which he ought to know he should do. The authorities are uniform, both in England and America, that an attorney is chargeable with a debt he is authorized to collect, if he acts in such a manner as to release the debtor. Kussell V. Palmer, 2 Wils. 325 ; Pitt v. Yalden, 4 Burr. 2061 ; Field V. Gibbs, 1 Pet. C. 0. R. 158 ; Gable v. Hain, 1 Penna. R. 264-267 ; Floyd v. Day, 3 Mass. 403 ; Gilbert v. Williams, 8 Mass. 57 ; Dearborn v. Dearborn, 15 Mass. 316 ; Williams V. Reed, 3 Mason, 416; Huntington v. Rumnill, 3 Day, 390; Smeed's Ex'rs v. Elmendorf, 3 Johns. 185 ; Kellogg v. Gilbert, 10 Johns. 220 ; White v. Skinner, 13 Johns. 307 ; Haynes v. Wright, 4 Hayw. 65 ; Eccles v. Sheveson, 3 Bibb, 517 ; Crooker v. Hutchinson, 1 Verm. 73 ; Paley on Agency, 4, 220. 2. In case of a public agent the rule is much more impera- tive. Much is left to private attorneys, and the law will infer an authority because the principal may compromise. But no officer of the United States has any right to compromise a debt FEBRUAEY SESSIONS, 1837. 151 The United States i;. IngersoU. due to them. This is the settled law, and nothing can be shown to the contrary. The Treasury never compromise; time is sometimes granted, but relinquishment nerer. 3. It is not necessary for the plaintiffs to establish any loss. (It is, however, apparent and actual here.) The defendant's plea of payment admits the receipt, and throws the negativing of loss on him. The United States have a right to rely on this plea as an acknowledgment of the receipt, and as proof of their demand ; and, till the contrary be shown, the defendant has no right to call upon us to prove loss. In fact and in law, then, these sums are chargeable to defen- dant, in addition to what he has acknowledged to be due. The next amount which, we think, subject to the opinion of the Court, is to be added to the defendant's indebtedness, is $3,687 79, principal, and $4,601 02, interest. This charge arises from various sums collected by the Marshal in suits which that officer marked "settled," thereby discharging the parties. The defendant was the principal law-officer of the United States ; he should have examined all these cases, and have had the money paid into Court. The duty of an attorney does not end with the judgment. (The District Attorney then adverted to an item of |5,149 40, principal, and $5,409 64, interest, for suits in which the parties were discharged, for insolvency, by order of the Treasury ; and one of $14,323 01, principal, and $13,456 10, interest, on suits said by the defendant to be erroneously referred to by the accounting officers. These items, however, he urged very slightly, admitting in both cases that, if the evidence was to be believed, the defendant was not chargeable.) The total amount, then, which the plaintiffs have offered evidence to charge the defendant with, is $29,422 39, prin- cipal, and $27,306 51, interest ; and, adding to this principal the sum of $13,302 45, we have the full amount claimed, viz., $42,724 84, and interest. As to the claim of interest, the defendant is certainly chargeable with it on those sums which are due because of his 152 FEBEUAKY SESSIONS, 1837. The United States v. IngersoU. errors, neglect, &c., it will be damages for his default of duty. Thus then the United States is entitled to a verdict for, at least, $19,564 64, and interest, perhaps for $42,724 84, and interest, unless the defendant can show claims of his own to an equal amount. Has he done so ? The first item he claims is $1,740 05 for taxed costs in revenue cases, not yet paid. If these costs have been proved to be taxed, which is for the jury to decide, they are a fair set-off. So of the second item of $5,083 20, for taxed costs in criminal cases. To the four claims of $1,000 each, arising from the militia cases, Amelia Island Cases, Toler v. Armstrong, and Conard's cases, it is answered that no authority from any competent per- son has been shown, under which the defendant acted ; and we shall see presently how impossible it is to admit that the United States shall be liable for professional services rendered at the request of subordinate officers. The next item claimed is for extra official services from March, 1815, to March, 1829, and amounting to $11,675. This claim is most important and unprecedented, and will re- quire consideration at some length. It is not supported by the proper vouchers ; but, if it were, it is altogether unlawful, and the defendant has no right to it. Contract, usage, and authority have been relied on as sustaining the charge, but neither of them exists. There never was any ground to suppose that a contract ex- isted, unless indeed it is contended that a contract can arise from continual claim, which is, at least, a novelty. There is no usage any more than there is a contract. No evidence of usage whatever has been given. There are now fifty District Attorneys performing exactly the same services ; since the claim was made there have probably been two hun- dred ; all these claims, if usual, must have been presented at the Treasury. Yet the defendant has not shown one instance FEBRUAKY SESSIONS, 1837. 153 The United States v. IngersoU. of the kind. Indeed, the only evidence produced by the de- fendant to prove the usage in fact proves the opposite. There is no authority for such an allowance. It has not been contended that any direct authority exists, but that a similar principle has been recognised in four cases, viz., U. S. V. Wilkins, U. S. v. Macdaniel, TJ. S. v. Ripley, and U. S. v. Duval. What is the point to be established? "That an attorney of the United States gives professional advice to a subordinate officer of the government, to aid him in performing his duty, vyithout the instructions or assent of a head of de- partment, is entitled to an annual sum to be charged on a general account, and paid by the government." Does U. S. V. Wilkins (6 Wheat. 135) sustain this ? Wil- kins contracted -with the Secretary of War to furnish provi- sions, without fixing a price ; he furnished them, and the Secretary refused to pay as much as he asked. The Court decided that Wilkins was entitled to a reasonable compensa- tion, which a jury might fix.' This does not approach the principle to be decided. Does U. S. V. Macdaniel (7 Pet. 1, 14) meet the case ? Macdaniel was a clerk in the Navy Department, and received his salary there. He was expressly appointed to perform two distinct and additional services for the Secretary of the Navy — to pay pensions, and discharge Navy Agent's duties. He was expressly and previously allowed a fixed and certain commission on moneys distributed for these services ; he re- ceived it for twelve years regularly ; in 1829 it was refused, and the Court said that usage gave him a right until he re- ceived notice of change. There is nothing to support the de- fendant's claim. U. S. v. Ripley (7 Pet. 18), instead of being authority for the allowance, expressly decides that, when the services are extra official, they must be performed to the government, with the sanction of a head of department, or in a peculiar emer- gency. 154 FEBRUARY SESSIONS, 1837. The United States v. Ingersoll. In U. S. V. Duval (Gilpin's R. 372), it is laid down that a usage must be so settled as necessarily to make part of the contract, and, at p. 374, allowances are confined to cases acted on by a head of department. Neither of these were the case here. These are all the cases, and they do not meet the present one either in principle, fact, or analogy. There is, therefore, neither contract, usage, nor authority to sanction the defen- dant's claim. Neither is it just in itself; it is a service ren- dered by one subordinate officer to another, according to their own agreement. What right have they to bind the govern- ment ? To what combinations might it not lead ? What right has an officer receiving a large salary to ask the government to pay his counsel fees ? State officers, sheriffs, &c., make no such claim. The law meant to provide certain emoluments for District Attorneys ; these emoluments may be inadequate, but the legis- lature have thought otherwise. Perhaps the law should be different, but still it is the law. Another item of the defendant's set-off is for $12,500, being a moiety of B. Thompson's forfeitures ; bonds thereon having been given to the defendant by Mr. Thompson, and taken from him by the United States. The facts of this matter, as they are in evidence, should totally destroy the extraordinary claim which has been made. The collector in Delaware engaged Mr. Ingersoll as his private counsel, the government knowing nothing of the transaction. The defendant sued Thompson here, and, without authority, took bonds for large sums due to the Collector. When this matter became known to the government, the Comptroller ex- pressed his surprise, and demanded the bonds ; they belonged to the United States, were for duties and penalties due in another district. The defendant at once relinquished the bonds. The United States directed their own officer to collect the bonds ; the defendant permitted Thompson to pay over the FEBRUAKY SESSIONS, 1837. 155 The United States v. Ingersoll. money without interposing a word ; allows the United States to receive it without ever knowing of this claim ; and eleven years afterwards he requires them to pay him a fee which he says the Collector had agreed to pay him for his private ser- vices, which fee the Collector denies to be due, and is now being sued for. A case has been cited to sustain this claim: Gallagher's Ex'rs- v. Koberts, 1 Wash. C. C. R. 320. But there the damages were ascertained ; they were on a protested bill. Owing, however, to a rule of law (being damages), they could not be set off. Judge Washington said that they might be set off in equity. Is there any analogy ? Here the whole claim is denied by the Collector, — much more by the United States ; and nobody knows whether it is good or bad. Now, the utmost of all these claims which can be allowed are Taxed costs in revenue cases SI, 740 05 Taxed costs in criminal cases, .... 5,083 20 Fee in Toler v. Armstrong 1,000 00 Fee in Conard's case, 1,000 00 $8,823 25 This sum deducted from $19,564 64, which, we have seen, is the least sum the defendant owes, leaves due to the United States $10,741 39, and interest; or even if deducted from the sum which the defendant himself admitted to be chargeable against him, leaves a balance of $4,479 20, and interest, due to the United States. The argument having been concluded on the 4th April, 1837, on the 6th April Judge Hopkinson charged the jury as follows : The claims of the plaintiffs were arranged or classed under four heads : — 156 FEBEUAKY SESSIONS, 1837. The United States v. IngersoU. 1. Custom-house bonds put in suit during the coUectorship of Delany and Latimer, and remaining unpaid and unaccounted for to the Treasury of the United States, .... $37,992 22 2. Bonds put in suit during the period in which Mr. Dallas was District Attorney, and remaining unpaid and unac- counted for 128,319 63 3. Bonds put in suit while the defendant, Mr. IngersoU, was District Attorney, 2,616,468 37 4. A debt recovered from Toler v. Armstrong, and received by the defendant 3,158 82 The total amount of these charges ia . . . . ^2,785,939 04 The credits or deductions that have been allowed to the defendant at the Treasury are as follows : 1. The whole of the first of the above items of claim, which may, therefore, be expunged from the account, . . $37,992 22 2. On the second of the above items of claim, he is allowed, for bonds not received by him, $82,536 15 On this item he is also credited with the amount of bonds collected by him and paid into the Treasury, being .... 43,481 93 126,018 08 Leaving a balance against him on this item of . . . 2,301 55 8. On the third of the above items of claim, that is, bonds received by him from the Custom-house for collection while he was District Attorney, he is credited as follows : L Bonds on which he received no money $1,668,077 88 II. Payments which were made by him, 822,556 39 III. Payments made by his successors, 93,402 76 Making his whole credit on this item, 2,584,037 03 Leaving a balance against him on this item of . . . 32,431 34 4. To these is to be added the amount received by him from Toler V. Armstrong, 3,158 82 $37,891 71 FEBKUARY SESSIONS, 1837. 157 The United States v. Ingersoll. The balance, or principal sum, then, Tyhich ia now claimed from the defendant, is thus made up : Balance due on Mr. Dallas's tonds, . . . §2,301 55 Balance due on defendant's own bonds, . . 32,431 34 Amount received in Toler v. Armstrong, . . 3,158 82 $37,891 71 The residue of the claim of the United States is made up of interest, calculated on each bond from the time it was put in suit to the 15th December, 1836, making the total amount claimed $76,491 00, with interest from the 15th December last. You will understand that the ground of primdfaeie charge, or charge in the first instance, against the defendant is not that he has actually received the money or the bonds claimed from him, or that they have been lost by any misconduct or neglect on his part, but simply that if it appears, by the records of the suits, that the party against whom they were brought has in any manner been discharged of the debt, either before or after judgment, by a discontinuance of the suit, or by an entry that the demand has been " settled," it is then thrown upon the defendant, under whose direction the suits were placed, to show how they were settled, to show why the defendants were discharged from the claim, or to show that it was not by the payment of the debt to him, or in any other manner, to make him legally or equitably liable to the United States for it. As a principle running through the whole case, I will here say to you that the discharge of a debtor, before or after judgment, is not of itself a ground of charge upon the defen- dant. He is liable for the money actually received by him, or which has been lost through his unwarrantable neglect ; but he is not answerable for the defaults, inattention, or frauds of the Marshal. He also is an officer of the United States ; they take from him surety at their pleasure for the faithful performance 158 FEBRUAKY SESSIONS, 1837. The TTnited States v. IngersoU. of his duties ; and the District Attorney^ is not oflScially the surety of the Marshal. The principle, however, is to be taken with the qualification that the loss arising from the Marshal may not be traced to the official negligence of the District Attorney. The Judge then recapitulated the facts appertaining to each of the items of the plaintiffs' account, as they appeared from the evidence ; and continued, as follows : We now come to the consideration of the most important and interesting part of the case ; that is, the claim made by the defendant upon the United States by way of set-off. So far as they depend upon questions of law, they involve prin- ciples of vital importance ; and I shall feel it to be my duty to speak of them in the most explicit manner, not only to prevent any misunderstanding on your part, but to give the party affected by my opinions an opportunity to have them reversed and corrected if I am mistaken. The first is a claim or charge of seventeen hundred and forty dollars for fees taxed, allowed, and credited, but unpaid. No reason has been shown to me, either by any of the Treasury documents, or by any evidence or argument offered fA this trial, why this money should not be all paid to the defendant. They are legal fees to which he is entitled by Act of Congress. It is objected, and I remember no other objection, that they require the allowance of the Judge. That is nothing but the evidence of the claim or right to be given to the Treasury. But we are not confined to this evidence : at any rate, that allowance may now be given, either in the form it is now given by me, or by a certificate on the account. Second, a claim of five thousand and eighty-three dollars and twenty cents, for fees taxed and allowed, but applied by the Treasury to the payment of a debt due to the government by Marshal Oonard. I can see no difficulty in this item of charge. The Marshal was the officer who received from the Treasury, not only his own fees but those of the- District Attorney and Clerk. In the account he presented to be settled FEBKUAKT SESSIONS, 1837. 159 The United States v. IngersoU. with the Treasury, he charged these fees, which he was to pay over to them when received from the government, and was not bound to make advances to them. Conard goes to the Trea- sury to settle his account ; in it there was a charge against the government, of a certain sum which included the fees due to the Clerk and District Attorney. Two objections were made to the allowance of this credit claimed by the Marshal : 1st, that the fees of the Clerk of the district and District Attorney were not receipted ; 2d, that it was undecided whether they should be paid by the Treasury or the Collector of the customs. In other words, the Treasury required vouchers to support these claims made by the Marshal. These vouchers were some account or receipt from those officers. In answer to this, all the'officers put in Mr. Conard's hands the receipts in question, known to be for the mere purpose of enabling Mr. Conard to receive from the Treasury the money due to them ; and if, on these receipts, the Treasury had paid the money to Conard, it is certain these officers would have been obliged to look to him for it. But the account with Conard was settled, and he would have been largely a debtor to the United States had they not allowed him a credit for these fees due to the Clerk and Dis- trict Attorney ; that is, had they not applied their money to pay his debt. If they supposed, which is hardly credible, that Conard had actually paid them this money, it was a mis- take ; but, at any rate, there was a misapplication of this money to Conard's account which ought to be corrected. Conard had authority to receive their money, but not to pass it in a credit to himself in his account. As the Clerk had no other means of obtaining a return of this money, he applied to Congress, who have honestly corrected the error. We now come to a class of charges to which I request your serious attention ; as, in my opinion, they depend upon prin- ciples of the highest importance. I shall not hesitate to give you my opinion upon them in clear and decided language, that you may understand my views of them, and the parties have 160 FBBKUARY SESSIONS, 1837. The United States v. Ingersoll. the benefit of an exception to them if they shall think them erroneous. They shall be submitted to you under such instruc- tions as I shall deem it my duty to give. They consist of charges or claims upon the United States for — 1, counsel fees in the militia cases ; 2, counsel fees in the Amelia Island cases ; 3, Attorney's fees for extra oflScial services ; consisting of advice, and, perhaps, other services rendered through the course of fourteen years, to various oflBcers of the government, such as those of the custom-house, of the direct taxes, and of the naval and military establishments. These last claims amount to $11,675. The first feature is, that these services form no part of the official duty of the District Attorney. They are, indeed, claimed because they did not ; and that they were performed by him simply as a professional man ; and that the persons employing him had it at their option to go to any other lawyer in the same manner, for the same purposes, and in the same rights. The contract of Mr. Ingersoll, whatever it was, ex- press or implied, for more or less, was a personal individual contract between him and the officers who employed him, and he was bound to take care that they had authority to contract with him. This question then is presented for decision in this case : Whether the subordinate officers or agents of the govern- ment employed in the custom-houses, or the collectors of taxes, or in the army and navy, amounting to hundreds and thousands, all and every one of them, have in themselves and by virtue of their offices, without any Act of Congress, any authority from any department of the government, to make contracts with whom they please, binding on the United States f This is a most startling question, and if the law of the United States sustains this right, I will venture to say that no other law of any other government ever has done so, and that no government can live under it. The ground of these charges is, that a custom-house officer, from time to time during the period mentioned ; that the col- lector of taxes ; that the Marshal of the district : xthat certain FEBRUAEY SESSIONS, 1837. 161 The United States v. IngersoU. naval and military officers — marines or recruiting sergeants — came to the defendant, not as the attorney of the government, not as the officer of the government, but as their attorney, selected by them ; and engaged^him in service on such terms as they chose, expressly or by implication, to make with him ; and this contract is a contract made for the United States, which they are bound to perform and fulfil. Under such contracts, made by such officers, some $14,000 or $15,000, are charged upon the United States. But let us turn from the circumstances of this case ; from the services -which I doubt not were meritorious ; from the charges which may be just and reasonable ; for these are utterly insignificant — a mere bauble, compared with the prin- ciple by which they are sustained. If these officers may make contracts with a lawyer binding on the United States, why not with anybody else, and for any other purpose they may imagine to be connected with the public service ? We do not know that many of these cases of service and advice may not have been strictly personal, for which the officer was himself only liable. But I put this out of the question. No law of the land, no usage, no precedent, no authority of any sort or kind, has been shown to support such an authority to such officers. Are we now to make the law for the first time in nearly fifty years ? "What should be the regular course in such cases ? The Collector of the customs wants advice in a certain difficulty ; let him, if there is time, consult the Department ; if there is not time, let him go to any counsel he pleases ; let it be an affair between him and his counsel ; let him make the contract for the service and pay it ; and then, in his account with the government, he may charge it to contingent expenses. The officers of the Treasury will examine it, and allow it, if it be such a service as they ought to pay for. He is a debtor of his lawyer, and the government is his debtor. But can he raise up a creditor of the government without their knowledge or consent, unless he is authorized to do so by some Act of Congress, or by some official usage authorizing him to do so ? 11 162 FEBRUARY SESSIONS, 1837. The United States v, Ingersoll. In the cases Trliere counsel fees are charged, as the militia cases, or a contract made by Marshal Smith (a defaulter and insolvent), there was no hurry, no emergency, requiring imme- diate action, so that the Department could not be consulted. On the contrary, in all these cases the government had their counsel and paid their counsel, and the defendant was not the counsel they employed, but the counsel of the Marshal, who had a large personal interest in the suits, and could aflford to have his counsel ; but in neither case was there any authority from the government to employ him. As to the charge of $1,000, for services performed in the Amelia Island cases, in the district of Delaware, it stands upon a diiferent footing from the militia cases. The services rendered by Mr. Ingersoll in Delaware, appear to have been performed by the direction, or at least with the approbation of the Secretary of the Treasury. In relation to these services the Comptroller writes that he has had conversations with the Secretary, and they had determined to allow eight hundred dollars for the several cases in the district of Delaware ; but it appears that antecedent to this Mr. Ingersoll had settled with the Collector of Delaware and paid him the moiety of the forfeiture belonging to the United States in the case of the " Good Friends," and the Collector had allowed Mr. Ingersoll one thousand dollars as his professional compensation from the United States. This the Collector had no right to do. It was a transaction between him and Mr. Ingersoll, and was probably not known to the Treasury when the Comptroller wrote his letters, as no remark is made about it. The Treasury, how- ever, acquiesced in this addition of two hundred dollars to the sum they thought sufficient for the services rendered them, and supposed, it is presumed, the whole affair was settled. Mr. Ingersoll now alleges that the one thousand dollars received from the Collector, was only for his services in the case of the " Good Friends," and asks a further sum of one thousand dollars for Thompson's cases. He relies upon the receipt given by the Collector to him to prove this. The receipt is FEBRUARY SESSIONS, 1837. 163 The United States v. Ingersoll. not explicit. The one thousand dollars are said to be a com- pensation " for his professional services from the United States." It may refer to all his professional services, or it may be confined to the case then settled. But this receipt was a separate paper between Mr. Ingersoll and the Collector. It has no binding power on the United States. It is to be recollected that in the Comptroller's letter to Mr. Ingersoll, he is informed that the Treasury had determined to allow him eight hundred dollars /or all these cases. We have, as far as I recollect, no reply from Mr. Ingersoll to these letters, from which we may infer that he acquiesced in this determination, with the addition of the two hundred dollars he had received ; if there was this acquiescence, there is no foundation for the claim. He should have said at once, that so far from receiving eight hundred dollars as a full compensation for all the cases, he had already charged one thousand dollars for one of them, and expected another thousand for the rest. If you should not think that there was this silence and acquiescence, still if you think the one thousand dollars paid was adequate under all the circumstances (in which you may fairly take into your consideration his receipt in the same cases from the Collector), you will not allow this item of $1,000. In support of these claims, the letters of President Monroe, and Mr. Dallas, the Secretary of the Treasury, have been re- ferred to. It is said the former has sanctioned the charge of counsel fees in the cases mentioned. Let us see if he has. I would premise that although the President has a right to employ any particular person on any particular service for the government, and to direct him to be paid for it ; yet giving his opinion on a past case for past services, not performed under his direction and authority, but being in the nature of an opinion on a question of law, that opinion is of no authority here. I speak of authority. Jt will be respected, but it makes no law, nor does that of the Secretary of the Treasury. But what has the President said on this occasion ? Mr. Ingersoll, for whom the President had a strong personal 1G4 FEBRIJAKY SESSIONS, 1837. The United States u. IngersoU. attachment, wrote to the President, stated his case, and urged his claim ? What was the answer of the President ? A most safe and prudent one. He sent Mr. Ingersoll's communica- tion to the Comptroller, who is the law officer of the Treasury, and writes to know " if the District Attorney of Pennsylvania has heen called to render professional services to the United States, out of the State, and out of the line of the practice in that State ?" I pay no regard to the verbal criticism of whether " and" means " or" — that is not the important part of this letter. But what follows ? " And that if the call was made upon him by either of the Executive Departments, it forms a just claim to a reasonable compensation." This is exactly in conformity with the opinion of the Supreme Court, delivered several years after. But does it say, if the call was made upon him by a Collector of customs in a different or the same State, or by a Marshal, or a Collector of taxes, at whose instance the service in question was rendered, that the counsel fees are allowable? No such thing, and the law officer, on this letter (if it were an authority) could not allow them. In relation to these counsel fees, a usage has been attempted to be made out. That is Mr. Wirt's case. It is enough to say his services were performed by direction of the President, at an arranged amount of compensation. As regards these fees, there is no Act of Congress ; there is no order or authority from any of the Executive Depart- ments ; there is no usage ; nay, there is no like instance from the beginning of the government to this day, nearly fifty years. As to the item of advice, &c., to Collectors, and naval and military officers, an attempt has been made to give it support by the sanction of Mr. Dallas, then Secretary of the Treasury, and, before that time. District Attorney. The account was presented by defendant to the Comptroller, and by him referred to Mr. Dallas, because of his knowledge and experience on the subject. What is Mr, Dallas's reply ? " There are many services performed by the District Attor- FEBRUAKY SESSIONS, 1837. 165 The United States v. Ingersoll. ney for -whicli compensation is not provided by the Acts of Congress, nor by the State fee bill. The inequality and in- justice of his compensation, compared with the compensation of Attorneys of other districts, are correctly stated in Mr. IngersoU's letter." This applies to the fee bill at New York, not to such charges as these. " If any law or precedent will authorize the settlement of Mr. IngersoU's account, I think it ought to be allowed and paid." But as there was no law or precedent found for it, it was not allowed by the Comptroller. As the letter from the Comp- troller to the defendant has also been relied upon to support these charges, it is proper to advert to it. It is dated on the 18th July, 1815, and in reply to one received by him from the defendant. After saying that he will refer the question of the fees to Mr. Dallas, he adds : " The manner in which you pro- pose to keep and settle your accounts, and to receive the moneys which may be due to you for your official services, will be per- fectly agreeable to me." In Mr. IngersoU's letter, he had pro- posed to keep and render his account for these services, and says, " Instead of presenting separate accounts to each Department, it would be more agreeable to me to state one entire account of the whole, and to present it to the Comptroller for examina- tion and settlement." To this manner of keeping and settling the account the Comptroller has no objection. Mr. Ingersoll proceeds : " Should this mode of stating the account be ap- proved, the mode of payment might in like manner be arranged so as to admit of the deduction of the whole sum due out of any fund paid into my hands." To this mode of paying what shall be due the Comptroller also agrees ; but as to the charges in question, he refers them to Mr. Dallas, and we have seen what he has said about them. As to precedent or usage on this item : 1st. Mr. Dallas, the Secretary of the Treasury, who had been for many years District Attorney, and in the stirring times of the embargo, &c., knew of none, or he would not have referred the question to the Comptroller. Yet, doubtless, he 166 FEBKUART SESSIONS, 1837. ^ The United States v. IngersoU. rendered the same services, and probably in at least an equal number of cases. 2d. Mr. Dallas, the younger, says he rendered similar ser- vices, and never made any charge for them. 3d. Of all the District Attorneys of the United States (pro- bably not less than forty), no account or precedent has been produced of such claims allowed or made. Their accounts are placed in the Treasury; some are, indeed, dead, but their accounts are there ; and many are still living. The Comp- troller who settled the accounts of all the District Attorneys knew of no claim like this. I do not inquire into the equity of these charges, nor how much of this service was performed by the defendant ; we must have a lawful authority for them. The principle is this: if he had an application a day, and another District Attorney but one a week, the right is the same. I leave this part of the case, however, upon the argument on both sides ; we must look to higher grounds to stand on. The question with us is not what were those services, or how reason- able are the charges, but, is the government answerable for them ? Had the persons who made the contract for the ser- vices a right to bind the United States to pay for them ? Are we now to make a new rule for this district, which is found in no other, and never has been in this or any other ? Will the other districts follow us in the innovation ? or are there to be as many rules for settling District Attorneys' accounts as there are districts ? Will the Treasury officers of the United States settle such accounts in such various ways ? It has been well put by the District Attorney, whether two subordinate officers of the government can sit down together and make contracts with each other binding on the United States ? Enormous would be the extent of the power ; there are thousands of such officers all over the United States. The more or less of the service done is nothing ; it is the principle, the power, which is the thing to be looked at. It has been argued by the defendant that, if there was no FEBRUARY SESSIONS, 1837. 167 The United States v. IngersoU. law for these charges at the time Mr. Dallas wrote his instruc- tions to the Comptroller, it has since been found by the Supreme Court, and cases have been referred to. These I shall briefly notice. The first is The United States v. Macdaniel, 7 Pet. 14. Mac- daniel was a salaried officer, a clerk in the Navy Department. The services for which he claimed compensation beyond his salary were no part of his duty for which the salary was paid ; but they were required of him by the head of the Department in which he was subordinate as a clerk, and he had no dis- cretion to decline the labor imposed upon him. This is clearly within the principle of Mr. Monroe's letter. The service was required by the head of the Department ; it was no part of his duty under his salary, and formed a clear claim to compen- sation. The next is The United States v. Ripley, 7 Pet. 18. With- out recapitulating the details of the case, the extra claims were for planning fortifications and disbursing moneys ; but the prin- ciple laid down by the Court was that equitable allowances should be made for extra services performed by an officer, which did not come within his official duty, and which he performed under the sanction of the government, or under circumstances of peculiar emergency ; and this must be shown on his part. Now, we can understand how a military commander at a dis- tance from the seat of government, or an Indian agent, as in Duval's case, may be called upon to disburse moneys or per- form services indispensable to the public service, on the moment, and without the possibility of obtaining the sanction of the government ; but whenever that sanction can be had, it must be obtained, else the officer acts at his peril. Now, whatever emergency there may have been in the case of any particular application to Mr. Ingersoll by a custom- house collector, or by a military or naval commander, yet at any time he might know, in a few days, whether the govern- ment would sanction such charges or no. Indeed, he made the application, and received no sanction. If the government 168 FBBKUAEY SESSIONS, 1837. The United States v. Ingersoll. was silent, Mr. Ingersoll should have suspended these services until he had their sanction. The next case is The United States v. Fillehrown, 7 Pet. 28. There the defendant, Fillehrown, was secretary to the commis- sioners of the hospital fund, at a fixed salary. He claimed compensation for extra services in bringing up the records of the Board, antecedent to his appointment, and also for dis- bursing moneys under the order of the Board. It was, in the first place, held by the Court that his having a salary did not exclude him from charging for these disbursements ; that it was not necessary the Board of Commissioners should have passed a resolution for the payment of the commissions claimed by the defendant for making the disbursements, nor that the Board should have sanctioned his claim for them. But it fur- ther appeared to the Court that the Secretary of the Navy considered the agency of the defendant, in relation to this fund, as entirely distinct from his duty as Secretary of the Board, and that he was to have extra compensation for it, — that is, for that agency ; and it also appeared that all this re- ceived the direct sanction of the Oommissioners. The Secretary of the Navy was the acting Commissioner, and had authority for doing what he did. It was, therefore, says the Court, " an express contract entered into between the Board, or its agent, and the defendant, and that the Board could not, after the service had been performed, rescind the contract, and with- hold from the defendant the stipulated compensation." This was simply the case of the same individual holdingi two distinct appointments, with a stipulated compensation for each, and, of course, he was entitled to both. United States v. Duval, Gilpin's Reports, 356, decided in this Court, was simply a recognition of the principles esta- blished in the foregoing decisions of the Supreme Court. The charges, then, which are made by the defendant, as a set-off against the United States on account of extra official services rendered to them or their officers, cannot be admitted, unless they are good and valid debts owing by the United FEBKUAKY SESSIONS, 1837. 169 The United States v. Ingersoll. States to the defendant ; and they are not such debts, — unless the various persons by whom they were contracted might, at their discretion, and by their own authority, make contracts binding on the United States. This cannot be. It is my clear opinion that all the charges made in this case, by way of set- off against the United States, for what are called extra official services, rendered by the defendant to certain subordinate officers of the government, and on their application and re- quest, — such as Collectors and other officers of the customs, in this or any other district, collectors of taxes, the Marshal of the district, and military or naval officers, — which are not pro- vided for by any Act of Congress, and were not performed on the call or requisition of either of the Executive Departments, and have not been sanctioned by them, or either of them, and which have not been sanctioned by a usage so certain, uni- form, and notorious, as to be understood and known to both parties, so as, in effect, to be taken as part of their contract, should not be allowed to the defendant as a credit or charge against the United States. I think that they should not have been allowed (as they were not) by the President, or the head of any Department ; and they are submitted to you, with these instructions as to the law. The seventh and eighth items of the defendant's set-off, as stated in the Treasury transcript, are for " counsel fees in the suits of Nicholl v. Conard, and of the Insurance Companies v. Conard." The services were rendered; and our first inquiry is, whether he was employed in them by a competent authority. I think this is sufficiently shown. On the 27th November, 1828, Mr. Ingersoll wrote to the Secretary of the Treasury, giving him an account of the trial and termination of the suit of Nicholl v. Conard, and of the part he had taken in it. At the same time, he presented his charge of seven hundred and fifty dollars for his fees in that case, and a further charge of two hundred and fifty dollars for retaining fees in the Insurance Companies' suit, to which suits he says he appeared, according to the instructions of the Secretary. On the 1st January fol- 170 EEBRUAKY SESSIONS, 1837. The United States v. IngersoU. lowing, the Secretary writes to Mr. IngersoU. He makes no objection to the charge in Nicholl's suit, on the ground that Mr. IngersoU was not employed by the United States, nor on any other ground ; nor does he deny that he had instructed Mr. IngersoU to appear in the other suits. On the contrary, he says : " By direction of the President, I have to request you will take part, on behalf of the United States, in the argument of the Atlantic Insurance Company v. Oonard." It appears to me that he acquiesces both in the authority for the services, and the amount of the charges for them. There remain for my observation only the clq-ims made by the defendant for his services in the suit of Toler v. Armstrong {vide 11 Wheat. 258), and for one-half of the moiety of certain forfeitures, of which he alleges he was deprived by the wrong- ful interference and acts of the Treasury officers of the United States. As to Toler v. Armstrong, I understand it to be, that a suit was brought in the Circuit Court of this district by Toler against Armstrong; Mr. Chauncey being the attorney and counsel of the plaintiff. Before it was terminated, the United States became entitled to the sum claimed by the plaintiff, by virtue of an assignment made to them. The original plaintiff, the client of Mr. Chauncey, having no longer any interest in the suit, turned it over to Mr. IngersoU, as the Attorney of the United States. Mr. IngersoU took charge of it, conducted and argued it as the sole counsel of the United States, both here and in the Supreme Court at Washington, and finally suc- ceeded in recovering and receiving the sum of $3,158 82. From this amount he deducts one thousand dollars as his professional fee, and is ready to pay over the balance to the United States. I confess that there is no item in any of the accounts of the parties to this suit which has embarrassed me so much as this. I have turned it again and again in my mind, to reconcile what appeared to me to be the equity of the claim with the higher obligations of the declared law of the land. It has been made a question in the argument of the defen- FEBRUAEY SESSIONS, 1837. 171 The United States v. Ingersoll. dant, whether, in performing this service, he should be consi- dered as acting for the United States, or for Toler, the party and plaintiff on record to the suit. I cannot consider him as acting as the attorney of Toler ; he had no authority from, or inter- course with him, nor did Mr. Chauncey surrender the action to him in that character, but clearly as the attorney of the United States. Toler had no longer any interest or lot in the suit or claim, and it was because he had not that his counsel abandoned it, and it was put into the hands of the attorney of the party who had succeeded to Toler's rights, and for whose benefit the suit was therefore prosecuted. I must consider Mr. Ingersoll as acting as the attorney of the United States in the prosecution of that action. How does his claim for compensa- tion stand in this view of the service ? The Act of Congress of the 24th September, 1789 (sect. 35, 1 Story's Laws, 67), enacts that " there shall be appointed in each district, a meet person, learned in the law, to act as attorney for the United States in such district, who shall be sworn or affirmed to the faithful execution of his office, whose duty it shall be to prose- cute in such district, all delinquents for crimes and offences cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned, except before the Supreme Court (which then was held in this city), in the district in which that Court shall be holden," and " he shall receive, as a compensation for his services, such fees as shall be taxed therefor, in the respective Courts before which the suits or prosecution shall be." Now, it is very clear, and has always been so understood, that for all the duties and ser- vices imposed upon and performed by a District Attorney under the directions of this Act, his fees, taxed as aforesaid, are the only compensation he can claim from the United States. Our question, then, is reduced to the inquiry whether the services performed by the defendant in the case of Toler v. Armstrong are such as are described and intended by the Act of Congress ? The words are : "All civil actions in which the United States shall be concerned." They are sufficiently comprehensive in 172 FEBRUARY SESSIONS, 1837. The United States v. IngersoU. their literal sense to include this case; but yet I have very serious doubts if they were ever intended to be so applied. They, in- deed, had an interest in the mon^y to be recovered in this ac- tion, and they were so far concerned in it ; but they were not concerned as a party to the subject of controversy, directly or in- directly. If the money should be recovered, it would be theirs ; if the plaintiff should fail, the judgment for the defendant would have no operation upon the United States in any way, or for any purpose. Their interest — their concern in this action was accidental, collateral, contingent. The court in which the suit was prosecuted knew nothing of the United States as a party concerned in it. These considerations, and others of a similar character, have raised an unquieted doubt in my mind whether the defendant should be excluded from a reasonable compensa- tion for this service ; but I think his claim may be put upon a fiiore certain ground. I would not say that this was an extra official service, but rather an official service, or service per- formed for the United States directly (not by implication, in the person of a subordinate officer), for which no compensation is provided by law, and for which the Executive or a Head of Department might and should allow a compensation. It will be remembered that the Act I have referred to expressly ex- cepts from the duties of the District Attorney (for which the compensation is provided by that Act), civil actions before the Supreme Court ; and this was the case when the Supreme Court sat in this city, at the door of the District Attorney. It was no part of his duty, even then, to argue the cause of the United States in that court. If we then should lay out of this case all that was done by the defendant in the Circuit Court of this district, we find him following the case to Washington, and there arguing it alone (as appears by the report), against Mr. Webster and Mr. Wheaton ; he succeeded, and the Treasury of the United States is so much enriched by his labors. But was this a mere volunteer service, for which he can raise no claim for compensation ? By no means. The United States accepted the service ; they relied upon it alone, they had no FEBKUAKY SESSIONS, 1837. 173 The United States v. IngersoU. other counsel, and this is enough to raise a contract for com- pensation for the service. It is entirely different from the cases in which the defendant entered into the service on the applica- tion, and as the counsel of other persons, although they were officers of the government. In these cases the United States neither originally required, nor ever accepted the service, as rendered for them, or by the requisition or sanction of any of the Heads of Department. The last item of set-off, or charge against the United States ■which it is necessary to call your attention to, is that stated as the tenth item in the Treasury transcript. It is a claim for twelve thousand five hundred dollars for a moiety of the fines and forfeitures received from E. Thompson and others, for which a bond had been given to the Collector of Delaware, which bond was in the hands of the defendant, and was taken out of his hands by the Comptroller of the Treasury. The de- fendant alleges that he was thereby prevented from getting into his hands the money due on it, and from retaining out of it the one-half the moiety belonging to the Collector, according to an agreement between him and that officer. The transactions upon which this claim is founded are very clear and intelligible. Certain vessels had been seized in the District of Delaware, by the Collector, for a violation of the laws of the United States, and prosecutions for the fines and forfeitures incurred, were instituted against them in that Dis- trict ; of course the District Attorney of this District had, officially, nothing to do with these proceedings. But the Col- lector of Delaware, having himself a large interest in these forfeitures, thought it expedient to come to Philadelphia and engage Mr. IngersoU as his counsel, as he might have done any other gentleman of the law here or elsewhere. He made an agreement with Mr. IngersoU, which was purely personal on both sides, by which he bound himself to divide with Mr. IngersoU the moiety of these forfeitures, which would belong to him in the event of a recovery in the prosecutions. After this agreement was made, Mr. IngersoU negotiated a compro- 174 FEBRUARY SESSIONS, 1837. The United States o. IngersoU. mise of the suits with the owners of the vessels and cargoes ; one of •which belonged to S. Girard, and two others to E. Thompson and others. From Mr. Girard Mr. IngersoU re- ceived the sum of $53,245 10, one-half part of which belonged to the United States, and the other half to the Collector and his counsel, with whom he had agreed to share it. A compro- mise was also effected with the owners of the other vessels and cargoes ; but, they being unable to pay down the money as Mr. Girard had done, Mr. IngersoU took their bond for the amount. With this the Treasury officers were highly dissatis- fied, and denied the authority of Mr. IngersoU to do it. This bond, given by Mr. Thompson, was left by the Collector in the hands of Mr. IngersoU ; some time after, but before the bond was paid, Mr. IngersoU received a letter from the Comptroller, in a reply to a letter from Mr. IngersoU which we have not ; in this the Comptroller says he has had a conversation with the Secretary of the Treasury, and continues : " We are of opinion that the bonds ought to be transmitted to the Treasury. You wiU, therefore, send them to this Department." Mr. IngersoU immediately transmitted the bonds to the Comptroller, making no objection of any kind, claiming no right in them, nor giving any intimation of his interest in them under his agreement with the Collector, or in any other way. The bonds were afterwards, by the CoUector, put into the hands of Mr. Duane, and the whole amount recovered and paid to the Collector. The amount recovered was finally divided between the United States and the Collector ; the United States having received not a dollar more than their own money ; and the Collector having in his hands his own part as well as that which is claimed by Mr. IngersoU. The ground of this charge then against the United States is, not that they have received and held the money belonging to the defendant, but it rested on the allegation that an officer of the United States wrongfully dispossessed the defendant of the bonds ; that, if he had not done so, the defendant would have recovered the money, and not Mr. Duane, and thus have been enabled to retain from the EEBKUAEY SESSIONS, 1837. 175 The United States v. IngersoU. Collector the share due to himself. Supposing that the United States would be answerable to him, in this suit, for a tortious act, a wrong done by one of their accounting officers ; where was the wrong here ? The bond was given to a Collector of the United States ; as such he was a trustee for the United States, at least for one-half of the amount secured by it. The direction to send it to the Treasury was, as I understand, with the approbation of the Collector, the other party interested in it ; at least, we haye heard of no objection on his part. Where then was the wrong on the part of the Treasury officer ? He knew nothing of Mr. Ingersoll's claim or interest ; he had no notice of his right ; no violence was used to obtain possession of these bonds, no menace, hardly an order. The Comptroller states the opinion of the Secretary and himself, and thereupon says to Mr. IngersoU, " You will, therefore, send them to this Department." It was done ; and it was not until many years afterwards, that the Treasury knew of Mr. Ingersoll's claim, or the agreement by which he supports it. The money claimed by Mr. IngersoU is in the hands of the Collector, whom he has sued for it ; and in that suit, the questions, whatever they may be, between him and the Collector, will be examined and settled by a Court and jury ; and should we charge the United States with it, and the Collector should afterwards show that nothing is due to Mr. IngersoU, how could we remedy the injustice ? If Mr. IngersoU thought the bond was improperly and wrong- fully called out of his hands, he should and might have resisted the call, and stated his reasons. The bond did not come into his hands as the Attorney of the United States, as a public officer ; and he was not bound to obey the call for it as a public officer, but had the same right over it as over any other paper placed in his hands by a client. I cannot see the shadow of a claim, in law or equity, upon the United States to answer this demand. Every controversy brought before a judicial tribunal for decision must consist of matters of fact, and matters of law ; and the legal justice of the case depends upon the facts as they 176 FEBKUAKY SESSIONS, 1837. The United States v. lugersoU. appear by the evidence, and tlie due application of the law to those facts. Our system of trial is admirably contrived to ob- tain a decision consistent with the law and the facts. The latter are referred to a jury, whose natural intelligence and knowledge of men, and the business of men, make them excel- lent judges of the credibility and effect of evidence. On the other hand, the Judge, from his legal education and studies, is better qualified to declare and apply the law to the case. The whole value of this mode of trial depends on the separate but harmonious action of these two powers ; the power of the jury over the facts ; of the Court over the law. The law is a per- manent system for all cases, and should be intrusted to an authority which is constant and permanent ; the same to-mor- row as to-day ; for one man as for another. The Judge in pronouncing it, acts under a personal as well as official respon- sibility. It must stand on an authority which is not versatile and uncertain, or there will be no security for any of the rights of persons or property for anybody. The opinion of one jury is no rule for another ; the verdict of one has no binding power on another ; it would be ruin to us all to confide in such a tribunal for the law. A great part of this case belongs to you, and be assured that I shall not disturb your possession of it. On the other hand, I deem it to be equally my right and duty to take possession of the part that belongs to the Court, and to maintain the authority of the law, according to the best of my judgment, so far as it is intrusted to me. There is another most valuable trait in our mode of trial. I mean its publicity ; whether the final decision, as its respects money and property, may or may not be satisfactory to the parties, they are sure of this important effect from the trial, that the true character of the controversy will be fully ex- plained and understood. If unjust, or illiberal imputations have gone abroad ; if the motives, the conduct, the integrity, and fidelity of either of the parties have been misrepresented by injurious rumors, they will be dissipated, and the truth be FEBEUARY SESSIONS, 1837. 177 The United States v. IngersoU. made known by a public and thorough examination of the whole circumstances of the case before an impartial tribunal. On the 6th April, 1837, the jury rendered a verdict for the plaintiffs for $3,985 78 and costs. The items appearing, from a paper handed by them to the District Attorney, to be as follows : DR. Mr. IngersoU, with amount received from Rodman ; but, as payment was immediately tendered, without interest, . $7,971 14 Amount received in Toler v. Armstrong, .... 3,158 82 Amount received from Kinsman, 1,679 07 112,809 03 CE. Mr. IngersoU with costs in revenue cases taxed, §1,740 05 Costs in criminal cases, taxed, . . . 5,083 20 Counsel fees in Nichollv. Conard, and Insurance Cos. V. Conard, 1,000 00 Counsel fees in Toler v. Armstrong, . . 1,000 00 8,823 26 §3,985 78 12 DISTRICT COURT OF THE UNITED STATES. iBuUtu iistritt nf f mnsqUiiiiiii. AUGUST SESSIONS, 1837. EDMUND FREEMAN V. THE SCHOONER JANE, WILLIAM J. DE WOLF, MASTER. Where a seaman, shipped for a part of a voyage, is discharged, at the ter- mination of his engagement, without payment of wages ; if he makes every exertion to foUow up the vessel, and, immediately he meets her, commences suit against her, his lien for wages is not destroyed though the vessel has made one or more voyages since his discharge. This was a libel for wages. The libellant shipped on board the schooner Jane, at New York, in December, 1836, for a voyage to Washington, North Carolina. On the 11th February, 1837, he was discharged at Washington, without payment of wages, and the schooner immediately sailed from that port. It was proved that the libellant followed the schooner to New York, and from there to Philadelphia, where he found her and immediately commenced suit. It was also proved that the schooner had made at least two voyages between New York and Philadelphia before she was attached in this suit, and since the libellant had been discharged. The case came on to be heard before Judge Hopkinson, on the 4th September, 1837 ; and was argued by Grinnbll for the libellant, and by Shoemaker for the respondent. AUGUST SESSIONS, 1837. 179 Lang V. Holbrook. The respondent's counsel abandoned all other grounds of defence which had been taken, and relied on the fact that the vessel had made several voyages since the cause of libel accrued. On the 8th September, 1837, Judge Hopkinson decreed for the libellant, for the whole amount of wages demanded. RICHARD LANG V. BENJAMIN HOLBROOK. 1. Where a foreign Court, not of Admiralty, has decided a case on different principles from those here recognised, and leading to a diiferent result from what would he here arrived at, though professedly deciding accord- ing to our law, this Court is not concluded hy such decision. 2. Any right may be waived; and, where that right is » severe penal for- feiture, a waiver will be considered with favor to the offender. 3. A seaman is entitled to wages up to the actual sale of the vessel, and they do not cease at the time of the date of the advertisement of the sale. 4. Where the credits in a seaman's account, as stated by the Captain in his answer, are not objected to ; there is no evidence to contradict the state- ment ; and the amount credited differs but slightly from that claimed in the libel ; the Court will take the Captain's credit as the proper one. 5. Where a seaman has misconducted himself and is discharged, but has been afterwards received again on board, his services accepted, and his wages allowed in his account, such misconduct cannot be alleged as a ground of forfeiiure against him, though the shipping articles contain a clause that the reinstating of an offending seaman shall not be a waiver of the forfeiture. 6. But, in such a, case, the seaman is chargeable on account of his absence without leave, as a deduction, especially when he has been serving, during such absence, on board another vessel ; as also with losses or expenses which were the result of his misconduct. This was a suit for wages. It appeared that the libellant shipped, as first mate, on board 180 AUGUST SESSIONS, 1837. Lang V. Holbrook. the ship John, of which the respondent Tvas master, on the 12th August, 1836, at Philadelphia, for a voyage to St. Thomas and elsewhere ; that in the shipping articles there was the fol- lowing clause : — " Provided, That if any of the crew disobey the orders of the master, or other officer of the vessel, or absent himself at any time without liberty, his wages due at the time of such disobedience or absence shall be forfeited, and in case such person so forfeiting his wages shall be reinstated or permitted to do further duty, it shall not do away such forfeiture ;" that the ship was detained for twenty-four hours on account of the ab- sence of the libellant at the appointed time of sailing ; that when he did come on board he was intoxicated ; that he was repeatedly intoxicated, disobedient, and disorderly during the voyage ; that he secreted the log-book during several weeks, during which time he made no entries in it, as it was his busi- ness to do, so that the only record of the proceedings, fee, of the ship during that time was a private journal kept by the Cap- tain ; that at Port au Piatt the libellant left the ship, without leave, for fifteen days, and during a part of that time was at work on board of another vessel ; that he was again received on board of the ship ; that at St. Thomas the Captain applied to the authorities of the port, who confined the libellant for some days ; that the libellant then commenced suit for his wages before a tribunal of the same place ; that that tribunal decided the libellant to be indebted to the respondent in the sum of eighty-six dollars and sixty-four cents and costs ; that the libellant never rejoined his ship, but was left at St. Thomas and sent home, a passenger, by the American Consul there ; and that this suit was commenced, by capias, on the 21st July 1837. The case came on for trial before Judge Hopkinson, on the 4th September, 1837. The record of the proceedings in the Court of St. Thomas was produced. The case was argued by C. Gilpin for the libellant, and by Dunlap and J. C. Biddle, for the respondent. AUGUST SESSIONS, 1837. 181 Lang V. Holbrook. On the 1st January, 1838, Judge Hopkinson delivered the following opinion : The decision of this cause was very near involving in it the consideration of some very interesting and difficult questions, that is to say, 1st. The conclusiveness of the sentence of a foreign Court of Admiralty in a suit in personam; and 2d. The effect of a clause in the shipping articles that a restoration of a deserting or misbehaving seaman to the ship and his duties, should not be a waiver of the forfeiture of his wages incurred by his desertion or misconduct. These questions have been examined with care and ability at the bar, but I think the evidence of the case relieves me from the necessity of deciding them, and reduces the case to some simple questions of fact and equity. It is impossible for me to consider the court in St. Thomas as a Court of Admiralty, although I should presume it had jurisdiction of the case. It does not profess to be a Court of Admiralty, but seems rather to have been a municipal tribunal. It is called "The Extra Court of St. Thomas;" the Judge is called "the Mayor and Recorder of St. Thomas," and he con- vened and held the Court " in the presence of two Associates." There is nothing in the form or constitution of the Court that bears any resemblance to a Court of Admiralty. The forms of proceeding are equally unlike those of a Court of Admiralty. There is no libel, no process, no answer. The whole proceed- ing is a singular one, and bears the evidence of its being in a municipal Court, while it has none of the features of a Court of Admiralty, whose proceedings and judgments are to be re- spected by all the world, because they are all supposed to be parties. If, then, there is not such a judgment as stands between this Court and the merits and justice of the case ; if we may look behind it, or rather into it, as it is set out on the record ; the illegality and injustice of the judgment, according to all our notions of admiralty law, is so great that it is impossible to 182 AUGUST SESSIONS, 1837. Lang V, Holbrook. support it. Among other things, the forfeiture of wages is ex- tended to wages earned after the alleged misconduct, going back even to the conduct of the mate at Philadelphia, and at Port au Piatt, and forfeiting the wages on the subsequent voyage from Port au Piatt to St. Thomas. Charges, too, against the libellant are allowed, contrary to the whole course of adjudica- tion in this Court. The contract was meant to be construed by our law, and the Court at St. Thomas professes to do so, but has greatly mistaken it. I feel myself at liberty to take up the case, notwithstanding the proceedings at St. Thomas. As to the clause in the shipping articles, that reinstating the offending seaman shall not be a waiver of the forfeiture. Sup- pose I give effect to this clause, — I must not, however, be under- stood as giving an opinion on it, — but for the present admitting it, still, this will not shut out the effect of other acts of waiver. Certainly, a party may waive any right ; and when that right is a severe penal forfeiture, a waiver will be considered with favor to the offender. In this case there is another equity against the forfeiture. The captain, after the offence, continued to receive the services of the libellant as his mate, and hired no other in his place. This gives strength to the evidence to show that the captain, in fact, — not by the legal construction said to be prevented by the clause in the articles, but in fact, by his own act and deed, — did waive the forfeiture. We have a regular account, made out by the captain, between the owner of the ship and the libellant, in which he gives him credit for the whole wages, from 12th August, 1836, to the sale of the vessel at St. Thomas on the 13th February, 1837, amounting in all to $132 60, differing but a few dollars from the amount claimed by the libellant in his account annexed to the libel. The difference is probably from a difference in the cal- culation of time, the one being to the advertisement of the vessel for sale, the other, perhaps, to the actual sale. If this AUGUST SESSIONS, 1837. 183 Lang V. Holbrook. be SO, I think the latter is the true term. But as the account of the captain, in this respect, has not been objected to, and there is no direct evidence to contradict it, T shall take his credit as the proper one. The claim of the libellant being thus ascertained to be $132 60, the only inquiry is, what debits are justly chargeable to him ? The captain, in the account alluded to before, has made many, -which result in producing a balance due from the libellant to the ship of $62 40. Without examining his charges separately and in detail, I will merely state the debits that, in my opinion, may be charged to him. The evidence certainly shows great misconduct on the part of the libellant, and particularly in such an officer as the first mate. The greatest offence is habits of intemperance. This began in the Delaware ; and the wonder is that the captain retained him, that he did not at once dismiss him. His keep- ing him affords ground for a belief that the account of his offences, of his drunkenness, insolence, and rioting, . set forth in the answer, are greatly exaggerated. But, whatever the misconduct was, it cannot now be brought up as a ground of forfeiture, after receiving the man and his services, and allowing his wages in the account alluded to. Still, the ship has a right to charge him with his absence, by way — not of forfeiture, but — of deduction, especially as it is in proof that he was working elsewhere during his absence ; and also with losses or expenses which were the consequence of his misconduct, especially of his intemperance. But I will not, in making these allowances, — they being conjectural, in a great degree, — put out of the case the imprisonment and suf- fering of the libellant at St. Thomas. The account stated on these principles will stand thus : The libellant will be entitled to wages, .... $132 60 Credit allowed to him by the captain, . . . . 10 50 ^ $143 10 184 AUG-UST SESSIONS, 1837. Lang V. Holbrook. Amount of credit, brought forward, $143 10 He is chargeable with His advance $26 00 Amount paid his wife, 48 00 Absence at Port au Piatt, fifteen days, . . 13 00 Loss by his intemperance, neglect, and mis- conduct 20 00 Sundries furnished him, as by his own account, . 2 50 109 50 Balance due libeUant, $33 60 Decree for libellant for thirty-three dollars and sixty cents, and costs. DISTRICT COURT OF THE UNITED STATES. NOVEMBER SESSIONS, 1837. JOHN F. SARCHBT V. THE SLOOP GENERAL ISAAC DAVIS, EEKIXSON, MASTER. 1. It is perfectly settled that, under the Constitution and laws of the United States, a judgment or decree, rendered in any of the United States, by a Court of competent jurisdiction, between the same parties, on the same subject-matter, has all the force and effect, in any other State, of a do- mestic judgment. 2. A judgment or dismissal of a bill, in order to be a bar of a second suit, must have been ordered upon a hearing of the parties, or on the merits of the cause. 3. A dismissal for want of appearance is not a conclusive judgment. 4. Where a libel is dismissed, in one of the United States, for want of prose- cution, such dismissal is not a bar of a subsequent proceeding, for the same cause of action, in another State. 5. Where a chain cable is loaned, by its maker, to a master, for the use of his vessel, under an agreement to be returned when another chain has been made and delivered on board ; and, on such delivery of the second chain, the first is promised to be returned at a fixed time, before which the vessel saUs, and the chain is never afterwards returned ; the vessel is properly chargeable with the price of both chains. 6. By the general maritime law, a Ken, for materials furnished, exists against foreign ships, and those of other States of the Union, which may be en- forced in the Admiralty independently of any bottomry bond. This was a libel for materials. The libel was filed on the 7th August, 1837, and set forth that the libellant was a chain and anchor maker ; that on the 186 NOVEMBEK SESSIONS, 1837. » ^ Sarchet v. The Sloop Davis. 8tli December, 1833, he furnished two chain cables for the sloop, then at Philadelphia ; that the price of them, as appeared by the schedule g,ttached to the libel, was $188 15 ; that he had never obtained payment therefor ; and concluding with the usual prayer for process. On the 17th August, Perry E. McNeill and John S. Lambdin filed an answer, stating them- selves to be the owners of the sloop by recent purchase ; that Errixson was no longer her master ; that, since her purchase by them, she had made several voyages ; that they were igno- rant of all the transactions as stated in the libel ; that on the 30th September, 1834, the libellant filed his libel against the sloop, in the District Court of the United States for the Dela- ware District ; that the said libel was filed for the same cause of action and for the same amount, with the exception of a charge of seventy-five cents for porterage ; that the said Court proceeded to hear and determine the matters in the said libel set forth, and decreed that the same should be dismissed ; and these facts they pleaded in bar to the present libel. The libel- lant replied, that certain proceedings in admiralty had been instituted, in the District Court of the United States for the Delaware District, against the said sloop by other parties ; that by a decree of the said Court therein, the said sloop was con- demned to be sold ; that the libellant authorized a proctor of said Court to take measures to secure his claim on the proceeds of the sloop ; that his said proctor filed a libel and took out process of attachment, proceedings on which were stayed ; that no further steps were taken therein to his knowledge ; that the libellant's said proctor had died long before the order of dis- missal set forth in the respondents' plea in bar ; that no new proctor was appointed ; that the libellant had no notice of any further proceedings ; and that he verily believed the said libel to have been dismissed for want of prosecution. To this the respondents demurred, on the ground that the decree of dis- missal was the decree of a Court of competent jurisdiction upon the same subject-matter, and, as such, could not be averred against or its regularity questioned or impeached, but NOVEMBER SESSIONS, 1837. 187 Sarchet v. The Sloop Davis. that it should be received as final and conclusive. They also rejoined generally. A transcript of the proceedings in Delaware, properly authen- ticated, was aflBxed to the respondents' answer and plea in bar. It appeared from the transcript that a libel had been filed, for the same cause of action, on 30th September, 1834 ; that pro- cess had been stayed thereon by order of the libellant's proc- tor ; that on the 13th January, 1835, Isaac Davis, Esquire, of Smyrna, appeared in his proper person, gratis, claiming to be the owner of the sloop ; that he consented that the cause should be proceeded in as if the process had been duly served, and the sloop delivered to him on his claim and stipulation, no ob- jection to be made because Thomas Clark, named in the pro- cess, was not regularly a party on the record ; and that he bound himself in $375 to abide and meet the result of the suit ; that the suit was continued for nine terms ; and that at June term, 1837, it was " ordered by the Court, that the libel filed in that cause be dismissed, and that each party pay his own costs." On the 22d September, 1887, the case came on before Judge HoPKiNSON, upon the demurrer ; and was argued by 0. Hop- KINSON and Emlbn for the libellant, and by Budd for the respondents. Budd, for the respondents. It is too late to attack the decree in Delaware ; for, if there was any irregularity in that proceeding, the libellant might have taken a writ of error. Serg. Const. Law, 390-2 ; 2 Kent's Comm., 118-20 ; Harrod v. Barretto, 1 Hall's (N. Y.) R. 155 ; Story's Confl. of Laws, 494-502, 506 (sects. 589-90, et seq.) ; Penhallow v. Doane's Ex'rs, 3 Dall. 103 ; The Pal- myra, 10 Wheat. 502. 0. HOPKINSON, for libellant. We do not impeach the validity of the decree in Delaware, 188 NOVEMBEE SESSIONS, 1837. Sarohet v. The Sloop Davis. SO far as it goes ; but it is not conclusive on us. To render it final, it must have been upon a hearing, or on the merits, which it was not. 2 Madd. 311 ; Pickett v. Loggon, 14 Ves. 232 ; Coop. Eq. PI. 270, 290. Emlbn, on the same side, cited, to the same point, Brandlyn v. Ord, 1 Atk. 571 ; Harvey v. Richards, 2 Gall. 228. On the 2d October, 1887, Judge Hopkinson delivered the following opinion on the demurrer. The libellant alleges that in December, 1833, he furnished and delivered to the sloop General Isaac Davis two chain cables, for which he claims the sum of $188 15, as per an account annexed to his libel. An answer is put in by Perry R. McNeill and John S. Lambdin, claiming to be the owners of the sloop. After setting out their defence on the merits of the libellant's demand, the respondents further answer that on the 30th September, 1834, the libellant filed his libel in the District Court of Delaware against the said sloop for the same amount now claimed, with the exception of seventy-five cents porterage, for certain iron chain cables alleged to have been furnished for the sloop ; that the said libel was for the same matters and to the same eflfect as the libel in this Court ; and they further say that the said District Court of Delaware did proceed to hear and determine the matters in the said libel set forth, and decreed that the same should be dismissed, all of which appears by a copy of the proceedings annexed, and therefore they plead the said decree in bar of the libellant's libel. The libellant replies to this answer and plea by denials &nd averments against the matters alleged on the merits ; and to the plea in bar he sets forth certain allegations to show that he had abandoned or stayed the proceedings on his libel in the District Court of Delaware; that he was not actually or legally in Court when the decree dismissing his libel was pro- nounced ; that his proctor had died long before ; that he had no knowledge of any of the proceedings in the suit after he had ordered the service of his process to be stayed ; and that NOVEMBER SESSIONS, 1837. 189 Sarchet v. The Sloop Davis. the said libel was dismissed for want of prosecution, without any examination or hearing of the merits. To this replication the respondents have demurred. If the plea in bar is sufEcient in law to conclude the libellant from a recovery in this case, it will be needless to go into the evidence or merits of the cause. What is the effect of the decree in Delaware, as it appears on the record annexed to the answer ? It is not the case of a foreign judgment, and it is therefore not necessary to examine the law upon the effect of such judgments. It is now perfectly settled that, under the Constitution and laws of the United States, a judgment or decree, rendered in any of the United States, by a Court of competent jurisdiction, between the same parties, on the same matter, has all the force and effect, in any other State, of a domestic judgment ; that is; of a judgment rendered in a Court of the same State in which the second suit is brought. Upon this question the cases decided in England should be attended to ; and we may inquire what is the effect, there, of a prior judgment or decree upon a second suit brought for the same cause -of action. The cases cited by the counsel for the libellant from 2 Madd. 311 ; 14 Ves. 232 ; Coop. Eq. PI. 270, 290 ; and 1 Atk. 571 ; are clear and full to the principle that the judgment or dismissal of a bill pleaded in bar of a second suit must have been ordered upon a hearing of the parties, or the merits of the cause ; and that a dismissal for want of appearance is not a conclusive judgment. In 1 Atk. 571, Brandlyn v. Ord, — a high authority, — the Lord Chancellor "laid it down as a rule, that when the defendants plead a former suit, that the Court implied there was no title when they dismissed the bill is not sufficient ; they must show it was res adjudicata, an absolute determination in the Court that the plaintiff had no title." We must observe how directly this authority meets the argument of the respondents, which is, that although there is no direct allegation on the, record that the cause was heard or determined on the merits, we must presume 190 NOVEMBEK SESSIONS, 1837. Sarchet v. The Sloop Davis. that it was so, or the Court would not have dismissed the libel, and ordered each party to pay his own costs ; that the terms of the order or decree imply or import a hearing and decision on the merits. Let us see if the law on this question, under the Constitution and Acts of Congress of the United States, is dififerent from what appears to be thus settled in the English courts. In Story's Conflict of Laws, page 506, the learned author, in sustaining the policy and reasonableness of the principle that foreign judgments should be conclusive, proceeds alto- gether on the ground that they have been rendered on the rcierits, and on the whole evidence. In speaking of the law, under the Constitution and laws of the United States, as to the judicial proceedings, public acts, and records, of every other State, he says they are put upon the same footing as domestic judgments. In the same author's Commentaries on the Constitution of the United States, in Vol. III., pp. 178-79, he examines the Constitution and Acts of Congress, and the decisions that have been made upon them, and maintains truly that more effect is to be given to the judgments in a sister State than to foreign judgments ; that in confederate States, that in States united under one national government, a more favorable atten- tion should be given to their judgments than to those of foreign States ; that a higher security and confidence, a superior sanc- tity and conclusiveness, should be accorded to public acts and judicial proceedings under the authority of the federal indivi- duals. With these broad and liberal views of the subject, with this disposition to give "full faith and credit" to the judicial proceedings of every State, he comes to this conclusion: " Under such circumstances, it could scarcely consist with the peace of society, or with the interest or security of individuals, with the public or with private good, that questions and titles' once deliberately tried and decided in one State, should be open to litigation again and again, as often as either of the parties, or their privies, should choose to remove from one NOVEMBER SESSIONS, 1837. 191 Sarohet v. The Sloop Davis. jurisdiction to another. It would occasion infinite injustice, after such trial and decision, again to open and re-examine all the merits of the case." The same argument, and in nearly the same language, is found to be used by Judge "Washington in the case of Green v. Sarmiento, 3 Wash. C. C. R. 22, 23. In page 180 of the " Commentaries," the author pursues the subject in the same strain of argument, always speaking of the evils of a re-examination of the judicial proceedings of each State. His conclusion as to the meaning of the clause of the Constitution is that the "full faith and credit" to be given to records, &c., is to attribute to them absolute verity, so that they cannot be contradicted, or the truth of them denied, any more than in the State where they originated. In Peters's C. C. R. 199, "Wright's lessor v. Decklyne, Judge Washington says the decree of dismission is not conclusive. The rule is admitted that the decision of a Court of competent jurisdiction, directly upon the same 'point, is conclusive when the same point comes again in controversy directly or collate- rally. Other adjudications have been referred to, but it is not ne- cessary further to examine them in detail, it is enough to refer to Wilson V. Speed, 3 Cranch, 283 ; Hopkins v. Lee, 6 Wh. 109 ; Harvey v. Richards, 2 Gallis. 228 ; and 1 Brown Reps. App. 1. It remains to look at the record now produced from the Dis- trict Court of Delaware, and I shall deny nothing, contradict nothing that it contains, but only inquire whether from that record it appears that the decree dismissing the libel from that Court was made on a hearing of the parties, or on a fair and legal opportunity afforded to the libellant for a hearing, or an examination of the evidence and merits of the case, or indeed whether the contrary of this is not manifest from the record itself, and without taking into consideration the allegations of the libellant's replication ; upon which I would however remark, that it is not in contradiction or denial of the record, but in direct answer to one of the allegations of the plea in bar. In the first place, it must be observed that the plea expressly 192 NOVEMBER SESSIONS, 1837. Sarchet v. The Sloop Davis. avers, after setting out that tlie libel filed in the District Court of Delaware was for the same matters as the present libel, "that the said District Court of the District of Delaware did proceed to hear and determine the matters in the said libel set forth, and decreed that the said libel should be dismissed, all which appears by the copy of the record of the said proceedings hereunto an- nexed." If this allegation is maintained by the record and evidence referred to, that is, if it does appear by that record that the Court did proceed to hear and determine the matters in the said libel set forth, then the respondent has maintained his plea in bar of the present suit, and will be entitled to a judg- ment accordingly; but if all this does not appear by the record, he seems to have admitted that he has failed to support his plea in an averment essential to its validity. The decree itself does not aver or purport to have been made after hearing, which is the usual form ; nor is there in any part of the record any allegation, suggestion, or intimation that any such hearing was had, or any notice given to the libellant of the admission of a new party to the suit, not named or known in his libel, or of any of the proceedings of the new party, or of any motion or intention to ask of the Court an order of dis- missal of the libel, or of any other motion, order, or decree re- specting the libel or the matters contained in it. Nor is there any decree or judgment rendered against the libellant upon the matters contained in his libel, and intended by that to be brought into controversy before the Court. Nor was any answer filed to the libel, or any issue depending before the Co^rt, so that they could judicially know what were the matters in controversy, or render a decree thereon. The Court knew nothing about the case, except that there was a libel which was not prosecuted. Can we then fail to know, without relying on the allegations of the libellant's replication, that the dismissal of the libel must have been because the libellant did not appear to prosecute it? for there was nothing before the Court but the libel upon which they could act, and they could act upon that only by dismissing it for a default of the libellant in prosecuting NOVEMBER SESSIONS, 1837. 193 Sarchet v. The Sloop Davis. it, or on some objection to form which does not appear. No answer, no plea, no issue to bring the merits before the Court ; nothing which the Court could, in the language of the plea in bar, " proceed to hear and determine." No evidence could have been heard, or trial had, in the state in which the case stood. There was nothing before the Court to be tried. Iitthe case of Gettings v. Burch, 9 Cranch 372, it was decided to be error in an Orphans' Court to decide a cause against the answer of the defendant, if the answer had not been denied by a replication, and if there be no evidence on the record contra- dicting the answer. The same principle would make it error in the Court in Delaware to have decided this cause against the uncontradicted libel; as we must not presume error in the judgment of a Court, ~ we must say that the order or decree in this case did not intend to decide the matters contained in the libel, but merely to dismiss it for want of prosecution, that being the only order the Court could legally make. The libel in Delaware was filed against the vessel called the General Isaac Davis, and one Thomas Clark is stated to be the master and owner of the vessel. Process of attachment was ordered against the sloop, returnable on the 22d October, 1834 ; and on that day the Marshal returned the process, stating that it was " stayed by order of George Reed, Esq., attorney for the plaintiff." So the case remained, the original process ex- tinct by a return of it to the Court, and no further proceeding against the vessel could have been had upon it. The libel only was in Court, and if the libellant had desired to proceed with his suit he must have asked for new process, as the ser- vice of the first had been prevented by his own order, and the Marshal having returned it could not have resumed or acted upon it. The case remained abandoned, or at least suspended, by the libellant, until the 13th January, 1835, nearly three months, when Isaac Davis, Esquire, who was not named or known in the libel, upon whom no summons or monition had been prayed or served ; whose pjroperty, supposing him to have been the owner of the vessel, was under no restraint or attach- 13 194 NOVEMBEE SESSIONS, 1837. Sarohet v. The Sloop Davis. ment by process, comes in and claims to be the gwner of the sloop "mentioned in the process aforesaid;" appears, as the record says, "gratis," that is, -without any legal call or obliga- tion upon him to do so, and claims to be the owner of the sloop ; he consents that the cause shall proceed as if the process (which had not been served at all), had been duly served, and as if the vessel had been attached and afterwards delivered to him upon his claim and stipulation (all of which was a pure fiction), and he also consents that he will make no objection because Thomas Clark, named in the record, is not regularly a party in the suit. This is all very extraordinary. Mr. Davis consents to all this. Now consent implies an agree- ment with some other party ; with whom did Mr. Davis make this agreement ? Not with the libellant, for he knew nothing of it, nor with Clark, for he was not in Court. He consents that the name of Thomas Clark shall be expunged as a party to the suit, and that his name shall be substituted for that of Clark. But did the libellant ever consent to this ? And could it be done without his consent, or an order of Court on due notice, and hearing of both parties. Again, Mr. Davis, on the same system of acting on Ms own consent, and making agree- ments with himself, binds himself to Mr. Sarchet, in three hun- dred dollars, to pay whatever shall be decreed in the cause to be paid by the vessel. Now a stipulation of this kind, in a suit in rem, is taken as a substitute for the thing attached and in the custody of the law ; but here nothing had been attached, nothing was in the custody of the law, there was nothing for which the stipulation was or could be a substitute. These things are adverted to, not as being irregularities to be corrected here, but as showing the nature of the whole transaction, and tend- ing to the conclusion that the libellant was not heard on the merits of his case, nor had any opportunity to be heard, that he had no notice of knowledge of these steps* but that the whole proceeding was ez parte, and the libel dismissed with- out hearing, and with one of the parties only, in Court ; if we NOVEMBEK SESSIONS, 1837. 195 Sarchet v. The Sloop Davis. can consider Mr. Davis as a party in Court after the extraor- dinary manner in which he put himself there. In the mean time, all the libellant knew of the suit, or any proceeding in it, was that he filed his libel ; that he had put his process into the hands of the Marshal, but had forbidden any proceeding upon it ; and that his suit was against the sloop and her owner and master, one Thomas Clark. He was igno- rant that a stranger to him and his process had come in "gratis;" had consented to put aside Thomas Clark, and placed himself as defendant in the suit ; and that this stranger was proceeding to dismiss his libel, to be a bar to any future suit for the recovering of his debt. No notice was given to him of any of these proceedings. Can I hesitate to believe that the libellant, having stopped the service of his process and suffered the vessel to be at large, considered that his suit was abandoned, or required no further attention from him ; or that it was possible he could suppose that a stranger could come in, without any notice to him or the original defendant, and carry on the suit to a termination. Isaac Davis, Esquire, having thus placed himself, "gratis," on the record as the defendant in the suit, remains at rest for eighteen months, that is from the 13th January, 1835, to June, 1837. In June, 1837, still without any notice to the libellant, an order is given by the Court that the libel be dismissed. On this review of the proceedings in the Court in Delaware, taken entirely from the record, it is manifest that the order for the dismissal of the libellant's libel in the Court, was not a judg- ment or decree on the merits of the case, or after a hearing of the parties on any of the points in controversy between them, and therefore it is not conclusive upon the rights of the libel- lant. The demurrer is overruled, and the cause will proceed to be heard on the merits. On the 13th January, 1838, the cause came on before Judge 196 NOVEMBEE SESSIONS, 1837. Sarciet v. The Sloop Davis. HoPKiNSON, on the merits ; and was argued by the same coun- sel as before. After the evidence, 0. HoPKiNSON, for the libellant, urged, 1st, that the con- tract was made on the credit of the vessel. The Genl. Smith, 4 Wheat. 443 ; The St. Jago de Cuba, 9 Wheat. 443 ; Abbott on Shipping, 116 (148, Ed. 1846). 2d, that it was in evidence that the articles had been supplied according to the contract. 3d, that the vessel belonged to another State, and was liable to the lien. Act of Congress of 31st December, 1792 (1 Story's Laws, 268). 4th, that there was no evidence of any waiver of the lien or remedy, either express or implied. BuDD, for respondent. Mr. Sarchet had security in Delaware, and relied upon that from 1834 to 1836, and waived all claim upon the vessel. The Act of Assembly of Pennsylvania ought to govern this case : that law relates to all vessels, foreign or domestic, and was the maritime law of Pennsylvania before this Court came into existence. Emlen, for the libellant, in reply. There is no doubt that the chains were delivered, and the price of them is not contested. The defence made is, 1st, that no lien exists, and, 2d, that, if it does, it has been waived. The lien is given by the general maritime law, the principles of which are not disputed; when a vessel is furnished with articles in a port to which she does not belong, and by the order of her master, the maritime law gives a lien upon her for the price of such articles. The waiver of this lien must be made out clearly on the part of those alleging it, which has not been done here. As to the security in Delaware, a stipulation to come in, an- swer, and abide by a judgment is not such a security as dis- charges a lien. On the 27th January, 1838, Judge Hopkikson delivered the following opinion in the case. NOVEMBER SESSIONS, 1837. 197 Sarohet v. The Sloop Dayis. The libel in this case is filed to recover the price of two chain cables furnished to the sloop General Isaac Davis in the months of November and December, 1833. In November the vessel was lying in the Schuylkill, under the command of John Errixson. She was built at Frederica, in the District of Dela- ware, where her owner, Thomas Clark, resided. The master applied to the libellant for a new cable for the sloop, and the libellant, not having a new one on hand, delivered to the mas- ter an old one, to be used until the new one could be made. Upon the delivery of the new chain, the old one was to be returned to the libellant. The new one was delivered, but the old one has never been returned, and both are now charged to the sloop, and she has been attached by the process of this Court for the recovery of the value or price of both. At the time of the contract for these chains, and of their delivery on board the sloop, she was owned by one Thomas Clark. She has now passed, by regular sales, into the possession of the respondents. Perry R. McNeill and John V. Lambdin, who appear and take defence against the claim of the libellant. They allege that they purchased the sloop from Isaac Davis, on the, 18th of February, 1837 ; that on the 15th of April, 1834, Thomas Clark, the first owner, sold her to Rhoda Hill and John Clark, who, in the same year, sold her to Isaac Davis. The answer then states the decree of the Circuit Court of the District of Delaware, which part of the defence has been passed upon by this Court in a decision unfavorable to the respon- dents. , Another defence, as to part of the claim, has arisen upon the evidence, to wit, that the old cable was not purchased by the master of the sloop, but borrowed of the libellant, and, therefore, created no debt chargeable on the vessel ; that by the agreement between the libellant and the master the old chain was to be returned by the latter and received by the former, and there was no contract of sale. In addition to these matters of fact, a question of law is presented upon the jurisdiction of the Court, or, in other words, the existence of a lien on the vessel, for the payment of the claim is denied. 198 NOVEMBEK SESSIONS, 1837. Sarchet v. The Sloop Davis. Upon the facts : — 1. It is not to be doubted that these two chains were de- livered on board of this sloop at the request of the master, who made the contract for them with the libellant, not only in virtue of his general authority as master, but by especial order of the owner. And no objection is made to the price. 2. As to the old chain, the facts are, that it was delivered by the libellant to Captain Errixson, for the use of the vessel until the new one should be ready for delivery, and that on the delivery of the new one, the old chain was to be returned to the libellant. The sloop made one or more voyages with the old chain ; she then came into the Schuylkill, when the libel- lant sent the new chain to her and demanded the return of the old one. It was not returned ; the persons on board, under whose direction we are not informed, refused to give their as- sistance to the porter to put it on the dray, and it was not in his power to do it himself; the porter was told, however, that if it was sent for on the next day it would be returned. The next day J. Sarchet went to the Schuylkill, but the vessel was gone with both chains, not even taking the care to put either of them on the wharf. From that day the libellant has never seen either of the chains, had any opportunity of getting the old one, nor had any offer to return it, with the exception of a conversation at Wilmington, in the month of June or July, 1834, between Thomas Clark and John Sarchet, when Clark says he offered to return it; but this offer was made after Clark had sold the sloop, and at a place — and, perhaps, after a lapse of time — when the libellant was not bound to receive it. I think, then, that the old chain is properly chargeable to the sloop, either as a conversion, by the owners, of the original loan into a sale, which may be inferred from their acts, or as damages for retaining and converting it to their own use. 3. The question of delay in bringing this suit has been made. Such delay ought not to be indefinite, especially in the case of new owners, but there has been no delay here that was not caused by the owner of the vessel, or the trade in which she NOVEMBER SESSIONS, 1837. 199 Sarchet v. The Sloop Davis. was employed, taking her from place to place with but short stoppages at any of them. There is no proof that the libellant had any knowledge of her being at this port after she left it with his chains for the first time. 4. There remains the question of jurisdiction. The law in the Courts of the United States is unquestionable that, in the language of Judge Story, " as to foreign ships, there seems to be no doubt, that by the general maritime law a lien exists for them, which may be enforced in the Admiralty, independently of any bottomry bond." Such is the doctrine of the Supreme Court of the United States in the cases referred to at the bar ; and a ship belonging to another State of the Union is deemed a foreign ship for this purpose. In Judge Story's last edition of Abbott, in a note on pages 115 and 116, the whole doctrine of liens in such cases is examined by the learned editor, and all the leading authorities cited. In the libels filed and tried in the District and Circuit Courts of Delaware against this same vessel for certain work and ma- terials furnished to her in this port. Chief Justice Taney gives a very clear and condensed view of the law of the case in full conformity with the doctrines of Judge Story, and it will pro- bably be a satisfactory manner of examining the case now be- fore us to take the opinion of the Chief Justice for our text, and apply it to the circumstances now in evidence. The libel and claim adjudged by the Chief Justice are stated by him to have been " to recover the amount due to the libellants re- spectively for work done, and materials furnished in rigging the sloop in the port of Philadelphia." From this general statement, as well as from other parts of the opinion it is ma- nifest that the claim of the present libellant was not brought before that Court or adjudicated by the decision given. The general facts of that case were substantially the same as they appear here; they are thus stated by the Chief Justice. "The sloop was built at Frederica, in the State of Delaware, where Thomas Clark, her, then owner, resided. The hull was com- pleted and launched about the last of July, 1833, and having 200 NOVEMBEK SESSIONS, 1837. Sarchet v. The Sloop Davis. neither masts nor sails, was towed" up to this city for the purpose of being here rigged. John Errixson, who was to be employed as her master, came in her to Philadelphia and remained here, giving directions while she was being rigged. But Glarh, the owner, was also here during the whole time, and made the con- tracts for rigging her with the workmen and material men. In applying the legal principles of the Chief Justice to this case, we must particularly remark these two circumstances : 1. That the sloop came to this port in an incomplete state, without masts or rigging, for the purpose of procuring them and putting her in a condition to make voyages, and that coming here in this condition, and for this purpose, she could not in any sense be said in her passage from Frederica to Philadelphia to have sailed on a voyage from the one to the other port. It does not even appear that she had any crew on board, and as she was towed up, it was not likely she had any. 2. That the owner of the sloop was here the whole time the work was going on and the materials furnished, and made the contracts himself. It seems that the rigging was finished on Saturday evening, and on Sunday morning following, the sloop, with her owner and master, was gone, and proceeded to Wilmington, in the State of Delaware, without any payment being made to the workmen and material men. At Wilmington she was enrolled, and took a coasting license on the day of September, 1833, and then commenced her business or employment as a coasting vessel, sailing to and from Frederica, Philadelphia, and New York. These are the facts upon which the judgment of the Circuit Court in Delaware was given. The points of law de- cided are these : 1. That the libellants had lost the benefit of the lien given by the Act of Assembly of Pennsylvania. Of this there can be no doubt. The only ground, then, on which the libel could be supported was that an implied lien was created by th€ general maritime law. It is true, as the Chief Justice said, that the principles laid down by the, Supreme Court in the case of the St. Jago de Cuba— 9 Wheat. 416— must decide the point against the libellants. And why ? Because in that NOVEMBER SESSIONS, 1837. 201 Sarchet v. The Sloop Davis. case it was decided that the lien given by the general maritime law, is confined to contracts made by the ship master in a foreign port, in the absence of the owner, and that no lien is implied when the owner himself is present and makes the eon- tract; and that in such a case the work and materials are pre- sumed to be furnished, not on the credit of the vessel, but on that of the owner. This was sufiicient for dismissing the claim in Delaware, as the owner was present and himself made the contracts attempted to be enforced by an implied lien on the vessel. The Chief Justice having thus disposed of the case before him on undoubted principles of maritime law, none of which afifect the case now to be decided, offers a remark upon the case of the " General Smith," — 4 Wheat. 438 — in which, he says, no distinction is taken between contracts made by the owner when the vessel is in a foreign port, or in the port of a State to which she does not belong. The Chief Justice con- fesses that the distinction is not very clear or satisfactory to him, but he adheres to it because it is expressly recognised in the case of the "St. Jago de Cuba." The distinction alluded to is certainly established by other adjudications, going even so far as to say that when the owner has an agent with funds where the contracts are made and the work done, they are con- sidered to be on the personal credit of the owner and not of the vessel. The case in Delaware was, then, decided on the ground I have mentioned, but to prevent misapprehension of the opinion of the Court in relation to other parts of the case, the Chief Justice proceeded to give his views or impressions of some of the circumstances, which are more immediately presented to our consideration. He says, " the Court must not be under- stood to decide that there would have been the implied lien on the vessel if the contracts had been made by the master in the absence of the owner." He thinks " there would have been strong objections to it," for he doubted whether the mere hull, without masts and spars, and not documented hy any custom- 202 NOVEMBER SESSIONS, 1837. Sarohet v. The Sloop Davis. house, ■when at Philadelphia for the purpose of being finished as a vessel, would be said to have its legal home in Delaware, merely because Delaware was the home of the owner. Nor was he prepared to say that the rigging of a new vessel, in order to fit her for the first time for sea, comes within the views or language of the maritime law, which gives the lien to workmen and material men for repairs. I think the doubt is a reasonable one. But reasonable as this doubt is, it will not be found to afiiect the claim of the libellant in this case. A general reference to the evidence of this case will show not only how different it is from that decided in Delaware, but how entirely it is clear of the objections and doubts suggested by the Chief Justice in the conclusion of his decree. 1. The contract was made by the libellant with the master of the vessel, and not with the owner, nor was the owner pre- sent at the port at the time the contract was made and the cables furnished. 2. The vessel did not come to this port to be fitted out at the time the cables were supplied, but was fully and completely equipped and actually employed in the coasting trade for which she was designed, having before performed other similar voyages. Her fitting and equipment was completed in September, 1833, after which she was taken to the Delaware District, where her owner resided, and made voyages from and to that district, the chains in question not being furnished for a considerable time. They were contracted for in November, when the old chain was delivered, and the new one in the December following. The sloop was then taking in coal to go to New York, and was lying in the Schuylkill, where it is not pretended the original equipment was made. 3. The sloop was regularly documented, enrolled, and licensed as a coaster at the custom-house of the Delaware Dis- trict. This was done at Wilmington, immediately on her return to Delaware, when her fitting out was completed, in September, and between that period and the months of November and NOVEMBER SESSIONS, 1837. 203 Sarohet v. The Sloop Davis. December, she had heen employed in her regular business voyages. 4. She did not get these cables for the first time, so as to take from the supply the character of repairs and give them the character of an original fitting out. It is clearly in proof that the first cables furnished to this sloop were purchased of one B. J. Pearson, and she had sailed with this chain, and the anchors got at the same time from the same person, from Sep- tember until the others were obtained from the libellant. In all these material points the case before us differs from that decided by the Chief Justice, and the lien claimed by the libellant is fully maintained by the principles of maritime law adopted by the Chief Justice in conformity with the settled doctrines of the Supreme Court as well as the English autho- rities. Decree for the libellant for the sum of $188 15, but with- out interest. DISTRICT COURT OF THE UNITED STATES. iBuitxn iistriit nf f BDitsqlnniiiii* FEBRUARY SESSIONS, 1838. 4 ll^c/k^£j 770 THE SHIP WASHINGTON, OAKFORD, OWNER, AND JAMES , TAYLOR, MASTER. 1. The law requires that the entry made in the log-book of the absence of a seaman shall show that it was without leave, in order that an innocent de- parture shall not afterwards be turned into a desertion. 2. To justify a seaman in leaving his ship, in a foreign port, because of the bad provisions supplied, the case must be very clear in point of fact, and the provisions must be not merely not of the best, but positively bad, and unfit for the men's support. 3. There is no law to relieve a seaman from working on Sunday. 4. If seamen, absent from their ship, in a foreign port, without leave, attempt to return to her by night, not saying who they are or what they want, it is not such a return as will restore to them their right to wages. This was a libel for wages. It appeared that the libellant shipped on hoard the Washing- ton, at Philadelphia, on the 17th July, 1835, for a voyage to Calcutta and back, at $13 per month; that, on the arrival of the ship at Calcutta, the crew were supplied with fresh provi- sions, and continued to be so supplied until the 10th January, 1836 ; that, on Saturday, the 9th January, 1836, they worked at discharging saltpetre from lighters into the ship till nine o'clock at night ; that at that hour the mate ordered them to cease working ; that they expressed a desire to finish the work FEBRUAEY SESSIONS, 1838.' 205 Ulary v. The Washington. that night, rather than leave it till Sunday morning, but were refused permission to do so ; that on Sunday morning, when ordered to work, ^ large portion of them, among -whom was the libellant, refused, saying that they would not work on Sunday ; that the supply of fresh provisions to all those who refused -to work was then stopped ; that on Monday they still refused to work, because, they said, they had been made to eat salt provisions, but no complaint was made of the quality of such provisions ; that the forecastle was then nailed up, to prevent their leaving the deck ; that on Tuesday they left the ship ; and that on Friday night a boat came towards the ship, but, on being hailed, changed her course and returned no answer. It was alleged that the libellant and the other seamen who had left the ship on Tuesday were in the boat, and endeavoring to return to the" ship, but all that appeared in proof was that, while on shore, they had stated their intention to return to the ship by night, and obtain their clothing. On the day the men left the ship, an entry was made in the log-book that they "ran away ;" and on the subsequent days they were noted as being " absent without leave." The Washington arrived at Phila- delphia on .the 17th June, 1836. The libellant left Calcutta on the 4th February, 1836, reached Philadelphia on the 28th August, 1836, and the libel was filed on the 8th September, 1837. The libellant claimed his full wages for the voyage, less certain credits for cash advanced, and for £2 Is. earned by him on the passage home. On the 16th March, 1838, the case was argued, before Judge HoPKiNSON, by Grinnell, for the libellant, and Scott, for the respondents. Gkinnbll, for the libellant. We contend, first, that the libellant has not forfeited his whole wages. When a total forfeiture is claimed, a strong and clear case must be made out (Magee v. The Moss, Gilp. 222), which has not been done here. The desertion — if any — was involuntary and justifiable ; the libellant was not supplied 206 PEBEUAEY SESSIONS, 1838. TJlary v. The Washington. with the usual provisions, and was forced to go on shore to get them ; he was treated with cruelty by being forced to remain on deck, and by being required to work on Sunday, without reason. Pet. Adm. Decis. 160, Whitton v. The Commerce ; Pet. Adm. Decis. 407, 411, Dixon v. The Cyrus ; 1 Hagg. 59, The Castilia; 1 Hagg. 163, The Bulmer; 1 Hagg. 187, The Jane and Matilda ; Abbott, pt. 5, c. 2, - sect. 2 ; Gilp. 232, Magee v. The Moss. Secondly, the libellant was entitled to his full wages, be- cause, as we have seen, he was justified in leaving the ship, or even if not, he made an attempt to return, which was unsuc- cessful, although the captain was obliged to receive him. Whitton V. The Commerce. Thirdly, the libellant is entitled, at least, to wages up to the time of his leaving the ship ; for an assent to his absence may be implied from the fact that no means were taken by the cap- tain to cause his arrest as a deserter. Gilp. 219, Magee v. The Moss. Scott, for respondents. It is worthy of remark that more than a year iad elapsed since the return of the ship before this libel was filed. It is admitted that the entry in the log-book is such as the law requires ; that the entry is true has been shown by the evidence ; and it only remains to examine whether or no the libellant was justified in leaving the ship. The misconduct of the crew commenced with their positive and mutinous dis- obedience of orders, and refusal to go to work on Sunday. It cannot be admitted that the men shall be judges of the pro- priety of an order. Their duty is to obey ; if the order is wrongful, they can obtain redress afterwards. This order however, was not wrongful. We look in vain foi- any law which exempts the sailor from working on Sunday. The supply of fresh provisions was an indulgence, to which the law gave no claim; and this indulgence was withdrawn when the men ceased to conduct themselves in a way to merit FEBRUARY SESSIONS, 1838. 207 TJlary v. The Washington. it. The forecastle was nailed up to prevent the men from retiring there in idleness when they should have been at work. So much for the justification. But it is said that the forfeiture of wages, which the men had incurred, was done away with by their attempted return. Their offer to return was not such as to produce this effect ; to do so the offer must be clearly made to the captain, and must be accompanied by an offer of amends. Whitton v. The Com- merce, Pet. Adm. Decis. 160, 161 ; Eelf v. The Maria, Pet. Adm. Decis. 193. It is said by Judge Peters (Whitton v. The Commerce, p. 164) that the captain is bound to receive back a mariner who has forfeited his wages, if he offers to return and to make amends. We are constrained to doubt this position. If this is law, it is in the power of seamen to nullify the Act of Congress, and rid themselves of a forfeiture absolutely incurred. The case of The Commerce did not re- quire this decision, as the captain had actually received the men back, and thereby waived the forfeiture. The point was not in any way material to the case. Gkinnbll, for libellant, in conclusion. The entry in the log-book was not such as is required to for- feit the wages. It merely stated, on the day that they were first absent, that they "ran away," and afterwards it was said that they were "absent without leave." The entry must, 1st, be made on the day ; 2d, show that the absence was without leave; (See Act of 20 July, 1790, § 5. 1 Story's Laws, 104.) The law forbidding labor on Sunday applies to seamen, ex- cept in case of necessity. Pet. Adm. Decis. 175, Thome v. White. On the 6th April, 1838, Judge Hopkinson delivered the following opinion in the case. This claim is for wages, for a voyage from Philadelphia to Calcutta and back, or, at least, from Philadelphia to the time 208 FEBRUAKY SESSIONS, 1838. tJlary v. The Washington. when the libellant left the ship at Calcutta. The ship sailed from Philadelphia on the 24th July, 1835, and returned on 17th June, 1836. The libellant left the ship at Calcutta, on the 12th January, 1836, with most of the crew, and never afterwards returned to her. The respondent alleges that the libellant has forfeited his wages ; first, by desertion, and second, by disobedient and mutinous conduct. The disobedience and departure from the ship are justified, by the libellant, first, on account of the character of the pro- visions furnished ; and second, because he was required to work on Sunday. As to the departure from the ship. It has been denied that the entries in the log-book are sufiBcient to forfeit the libellant's wages. All that the law requires is that the entry shall show that the absence was without leave, in order that an innocent departure shall not afterwards be turned into desertion. We find in the log-book the term "ran away," and afterwards an entry that the men were " absent without leave," though not made on the day the men were first absent. Taking the whole book together, however, the second entry is explanatory of the first. But it is not necessary to insist upon the entry in the log- book in order to show that the libellant's wages were forfeited as the refusal to work, the obstinate disobedience, and the final abandonment of the ship and his duty, will work a forfeiture unless avoided by sufficient reasons on the part of the libellant. The libellant has alleged two grounds of justification. First, the character of the provisions furnished ; and second, the fact of his being required to work on Sunday. In regard to the provisions, it appears that they were the same that the crew had used on the voyage out, without com- plaint, and that the same were used, equally without complaint, by the returning crew. But the case must be extremely clear in point of fact, and the provisions not merely not of the best, but positively bad, and unfit for the men's support, to justify FEBKUARY SESSIONS, 1838. 209 Ulary v. The Washington. their leaving tlie ship in a foreign port. They had another remedy ; and an extreme case only can justify desertion. I think the libellant has failed to justify himself on this point. The libellant contends that he was not bound to work on Sun- day. There is no law for this position. The nature of the service requires that the men should do so, and they must not be allowed to set themselves up as judges, and refuse to do their duty on such excuses. I think that, on the whole, the libellant has failed to justify his refusing to work, and his leaving the ship. Has he avoided the forfeiture by his subsequent good con- duct, that is, by his repentance, and offer to return to his duty and make amends for the past ? It is wholly uncertain whether or no the boat spoken of was their boat, or whether the libellant and his companions were in it. But, supposing ttat it was they, is this the state of repen- tance, of return to duty, of tender of amends, intended by the law ? To come off at night, to say nothing, not to explain who they were, or what they wanted ? I cannot think that this was the proper course. We do not know that they did not come off simply for their clothes. There was no offer to return to duty, merely an effort to come on board ; but for what pur- pose, no one knows. This is not what the law requires. The offending seamen must come in person, must show their repen- tance for their fault, and their willingness to return to duty. Libel dismissed. U 210 FEBEUARY SESSIONS, 1838. Swaim v. The Franklin. CHARLES Q. SWAIM AND ISAAC DAMARBST V. THE BRIG FRANKLIN. A libel dismissed, pro formd, for want of jurisdiction, in order to allow an immediate appeal ; tlie question being on the jurisdiction oyer a case of contract under the general maritime law- This was a libel for damages, for not delivering goods accord- ing to the provisions and terms of a bill of lading. It appeared that the bill of lading was dated at Philadelphia on the 28th December, 1836 ; that the goods therein mentioned were to be delivered to Champomier and Guard at New Orleans, they being the agents for the libellants, and by them forwarded to one John S. Khea, at Dayton, Ohio ; that the goods were not delivered to Champomier and Guard at New Orleans, but to some other person ; that they were not sent to Rhea for a long time, but were transported in various directions, and to various places, by the person to whom they were erroneously delivered at New Orleans ; and that, when they finally reached Rhea, they were damaged, and burthened with heavy charges for transportation. The libel was filed on the 14th March, 1838, and claimed damages on this state of facts. A plea to the jurisdiction was filed on the 16th of the same month. On the 4th April, 1838, the case came on for a hearing be- fore Judge HoPKiNSON, on the question of jurisdiction, and was argued by Thompson and Gerhard, for the libellants, and Fallon and Shoemaker, for the respondent. Thompson, for the libellants. This Court has jurisdiction over contracts of a maritime nature, by proceedings in rem or in personam ; De Lovio v. FEBRUARY SESSIONS, 1838. 211 Swaim v. The Franklin. Boit, 2 Gall. 398; Gilp. 524; Kamsay v. Allegre, 12 Wheat. 611. The ancient Admiralty Court of England has always taken jurisdiction according to the nature of the action, and not according to the place ; Dunlap's Adm. Prac. 7, 13, 16, 35. The restrictions on the Admiralty jurisdiction in England arose from the contest between the Courts of common law and Ad- miralty ; but the restraining statutes have never had any effect in this country, and ought not to affect the jurisdiction of this Court ; Stevens v. The Sandwich, Pet. Adm. Decis. 232, 235, in note ; Davis v. The Seneca, Gilp. 29 ; Zane v. The Presi- dent, 4 Wash. C. C. R. 453 ; Davis v. The New Brig, Gilp. 473 ; Thackarey v. The Farmer, Gilp. 533. When the con- tract is strictly maritime, and within the ancient English Ad- miralty jurisdiction, our Courts will take jurisdiction of it, not restrained by the English common law decisions ; Serg. Const. L. 21, 207. Our Courts have far exceeded the Admiralty jurisdic- tion in England ; 2 Br. Civ. & Adm. L. 122 ; Abbott, 143 ; North V. The Eagle, Bee, 78 ; The Aurora, 1 Wheat. 96, 102, 105 ; The General Smith, 4 Wheat. 438 ; Phillips v. The Scatter- good, Gilp. 1. A lien is given, on a foreign ship for repairs, by the general maritime law, but denied by the common law of England. The fact of such a lien being recognised in this country proves that we follow the general maritime law ; The St. Jago de Cuba, 9 Wheat, 409, 416 ; Ramsay v. Allegre, 12. Wheat. 613, 616. All these liens, of which the Admiralty takes jurisdiction, are on an implied liability incurred on land,, and the service is performed on land, but the contracts relate to navigation and commerce ; The Jerusalem, 2 Gall. 345 ; Peyroux v. Howard, 7 Pet. 324 ; The Draco, 2 Sumn. 174 ; The Zodiac, 1 Hagg. 325; Johnson v. M'Donough, Gilp. 101 ; Hussey v. Christie, 9 East, 426 ; Smith v. Plummer, 1 B. & Aid. 575 ; Bulgin v. The Rainbow, Bee, 116 ; Brackett V. The Hercules, Gilp. 189; Ross v. The Active, 2 Wash.. C. C. R. 226; The Favorite, 2 Rob. 237; The Grand Turk, 1 Paine, 73; Oustenv. Hebden, 1 Wils. 101; Skrine v. The Hope, Bee, 2 ; The Aurora, 3 Rob. 133 ; Janney v. The Columbia, 212 FEBRUAKY SESSIONS, 1838. Swaim v. The Franklin. Ins. Co., 10 Wheat. 411. Many cases can be found as to seizures under laws of the United States, yet these laws must be unconstitutional if the admiralty and maritime juris- diction of our Courts is confined to what it was in England when the Constitution was adopted ; TJ. S. v. La Vengeance, 3 Dall. 297 ; The Samuel, 1 Wheat. 9 ; The Octavia, 1 Wheat. 20 ; The Sarah, 8 Wheat. 391. In regard to contracts of a mari- time character our Courts have jurisdiction ; The Orleans v. Phoebus, 11 Pet. 183 ; The Mary, 1 Paine, 671. Jurisdiction is exercised over cases of charter-parties and bills of lading ; Drinkwater v. The Spartan, 3 Am. Jurist, 26. The only dif- ference between a charter-party and a bill of lading is, that one is for the whole ship, and the other for particular articles ; The Volunteer, 1 Sumn. 561 ; 2 Kent Comm. 220 ; Crane v. The Rebecca, 6 Am. Jurist, 1. Fallon, for respondent. We will not go into the general question of jurisdiction, but shall take up the case on its own particular facts. We mean to deny the jurisdiction over this particular case, but not over the general and broad ground. We will admit, for the present, that in general a bill of lading may be enforced in this Court, but -we say that this is not such a case as is embraced in this principle ; Bains v. The Schooner James and Catherine, Baldw. 544, 556. The libel charges, for the cause of action, that the goods were not delivered to the persons named in the bill of lading, but to other persons, and by reason whereof they were sent out of their destined course. The jurisdiction does not appear, and, as the Court is one of limited jurisdiction, it must appear aifirmatively on the libel that the case is within the limits ; Bank of the U. S. v. Weisiger, 2 Pet. 341. It does not appear that the damage was done at sea, or in a seaport, and there is, therefore, no admiralty jurisdiction. The action is brought for the non-delivery of the goods to the proper person ; not for any damage sustained by them at sea, or in ,port, or on board the vessel, but because the goods were sent FEBRUARY SESSIONS, 1838. 213 Swaim v. The Franklin. out of their proper course. The goods having arrived at New Orleans, this Court has no jurisdiction because of their delivery to a wrong person after their arrival. The libel admits the arrival, and charges, as the ground of the suit, that the goods were delivered to a wrong person, which, of course, could not have happened at sea, or in the harbor. The cases fully es- tablish that a bill of lading is within the jurisdiction of the Court ; but to be within the jurisdiction, the contract must be maritime, and the breach must happen, or the cause of action arise at sea ; De Lovio v. Boit, 2 Gall. 406, 440, 449, 467, 475. If the libel shows that the goods arrived safely at New Orleans, there is an end of the jurisdiction. A bill of lading contains two contracts, one to transport the goods, the other to deliver them. For the breach of the first the Admiralty has jurisdic- tion, but not for the second, which is not to be performed at sea ; The Volunteer, 1 Sumn. 553. The lien for freight is sustained because the service was, from its inception to its ter- mination, on the sea ; Drinkwater v. The Spartan, 3 Am. Jurist, 29. The same principle decides Crane v. The Rebecca, 6 Am. Jurist, 1 ; Bulgin v. The Rainbow, Bee, 116 ; Ramsay v. Allegre, 12 Wheat. 611, 684; and Phillips v. The Scattergood, Gilp. 1. The damages claimed here are extraordinarily remote ; they are for the consequential expense and loss alleged to have been sustained by sending the goods to a wrong place, out of their destined course. That is, the goods were delivered to a wrong person ; that person sent them to a wrong place, and that oc- casioned the loss and expense, which is the damage claimed. Even if the owners should be responsible, this gives no lien on the vessel. Whoever claims a lien must establish it ; The Ge- neral Smith, 4 Wheat. 443. Shoemaker, for the respondent. Admiralty judges and Courts, in this country, are governed only by the Constitution and Acts of Congress. It was in- tended to give to the Admiralty jurisdiction in such cases, only. 214 FEBRUARY SESSIONS, 1838. Swaim V. The Franklin. as were not properly cognizable at common law. Talbot v. The Three Brigs, 1 Dall. 95; Articles of Confederation, Arts. 2, 9. The words " cases of admiralty and maritime jurisdic- tion," in Art. 3d, section 2d, cl. 1, of the Constitution, were intended to refer to the jurisdiction, as given by the Articles of Confederation. The trial by jury has always been a favorite with the States. See the 7th Amdt. to the Constitution. All this matter, however, is to be decided by the statute under the Constitution. The Act of 24th September, 1789, section 9 (1 Story's Laws, 56), uses the words, " saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." " Suitors" includes defendants as well as plaintiffs. Whatever jurisdiction this Court might have had before this statute, it is now taken away wherever the common law can afford a remedy. Fisher v. Blight, 2 Cranch, 386. Gerhakd, for libellants, in reply. i It has been frequently decided by this Court, that its juris- diction extends to all maritime contracts. Davis v. The New Brig, Gilp. 477 ; De Lovio v. Boit, 2 Gall. 449, 442 ; Drink- water V. The Spartan, 3 Am. Jurist, 26 ; Crane v. The Re- becca, 6 Am. Jurist, 1 ; The Draco, 2 Sumn. 178, 180. This jurisdiction extends over the whole contract, and is not limited to the place where the breach takes place. The contract is not performed by the mere transporting the goods over the sea. This must be followed up by the delivery of them to the person designated. It is this which is the consummation of the contract. The objections which have been made to the jurisdiction, from the origin and statutory limitations of the Admiralty Courts in this country, are answered by Dunl. Adm. Pr. 38. The case in Baldw. 656 (Bains v. The Schooner James and Catherine), is inconsistent with the whole current of decisions. Thackarey v. The Farmer, Gilp. 351 ; Peyroux v. Howard, 7 Pet. 324 ; Davis v. The New Brig, Gilp. 473 ; The Or- FEBRUARY SESSIONS, 1838. 215 Swaim v. The Franklin. leans v. Phoebus, 11 Pet. 184 ; 3 Story Const. 640, § 1663 seq., 536, § 1668 seq. ; 1 Boulay Paty, 149, 150 ; 2 Boulay Paty, 308 ; 3 Pardessus, 163, 186 ; The Nestor, 1 Sumn. 73 ; Cer- tain logs of Mahogany, 2 Sumn. 589 ; Janney v. The Columbia Ins. Co., 10 Wheat. 418 ; 2 Br. C. & A. L. 122. On the 20th April, 1838, Judge HOPKINSON said that the case had been elaborately argued ; that it would impose a great labor upon him, and require much time to give a full examina- tion to all the authorities and arguments that had been insisted upon, which was hardly possible to be done during the session of the Circuit Court ; that even when done it would decide nothing, but be only preliminary to carrying the case to the Circuit Court. In this view of the case, he had determined to give a judgment pro formd; that it would be in favor of the plea to the jurisdiction, because that would be a final judgment, and allow an immediate appeal, whereas a judgment for the jurisdiction would be followed by a further hearing on the merits. Libel diamisseA. pro formd, for want of jurisdiction. No appeal was taken. DISTRICT COURT OF THE UNITED STATES. €uUxu iistritt nf f BEHSijlniiDiii. MAY SESSIONS, 1838. FRANCISCO FBREAKA, DONATO SANGKEGORIO, ROSALIO MICALE, GIACOMO CAMBRIA, AND NICOLO FIERA, MARINERS, V. THE BARQUE TALENT, JENKINS, MASTER. 1. It is clear that the claim for additional wages under the ninth section of the Act of 20th July, 1790 (1st Story's Laws, 106), is not founded on the mere fact that the crew were put on short allowance, hut on the neglect or omission of the master to take on board the quantity and species of provisions required by that Act. 2. The two circumstances of deficiency in the quantity or quality of the pro- visions, and a short allowance, must concur in order to entitle the crew to the remedy provided by the ninth section of the Act of 20th July, 1790. 3. Where the respondent's counsel does not object to the examination of the libellants themselves as vritnesses, the Court will receive their evidence. This was a libel for double wages, under the ninth section of the Act of 20th July, 1790 (1st Story's Laws, 106). The case came on for a hearing before Judge Hopkinson, on the 18th May, 1838, and was argued by Grinnell, for libellants, and Gillou, for respondent. On the 22d May, 1838, Judge Hopkinson delivered the following opinion in the case. The libel of complaint^ in this case is founded on the Act of Congress of the United States, passed on the 20tb July, 1790, MAY SESSIONS, 1838. 217 Ferrara v. The Talent. which ordains that every ship or vessel belonging to a citizen of the United States, bound on a voyage across the Atlantic Ocean, shall, at the time of leaving the last port from which she sails, have on board, well secured under deck, at least sixty gallons of water, one hundred pounds of salted flesh meat, and one hundred pounds of wholesome ship bread, for every person on board such ship or vessel, besides such other provisions, stores, and live stock, as shall, by the master or passengers, be put on board. The Act then enacts that in case the crew of any ship or vessel, which shall not have been so provided, shall be put on short allowance, in water, flesh, or bread, during the voyage, the master or owner of such ship or vessel shall pay, to each of the crew, one day's wages, beyond the wages agreed on, for every day they shall be so put on short allowance. It is clear by this law that the claim for additional wages is not founded on the mere fact or circumstance that the crew were put on short allowance, but on the neglect or omission of the master to take on board of his vessel the quantity and species of provisions required by the Act of Congress. If the crew have been put on short allowance, and the ship had not the requisite provisions on board, then the penalty ordained by the Act accrues, and may be recovered by the seamen. The two circumstances must concur ; that is, a deficiency in the quantity or quality of provisions directed by the law, and a short allowance, in order to entitle the crew to the remedy provided by this Act of Congress. What is the evidence in this case ? To support the com- plaint of the libel, two witnesses were examined — Nicole Fiera and Francisco Ferrara. They speak of their having been put on short allowance fifteen days after they left Messina, but neither of them have a knowledge of the provisions really put on board, and that is the primary fact to be established. On the other side, three witnesses, exclusive of the answer and deposition of the captain, swear positively, and with accurate knowledge, to the quantity of beef, pork, and bread, taken on board at Messina; and, if they are to be believed, the quantity 218 MAY SESSIONS, 1838. Smith V. The Stewart. was much greater than that required by the law. They also assert that the crew were not put on short allowance until the vessel had been sixty-five days out from Messina. It must be observed that the passage in this case was of one hundred and four days, whereas an ordinary voyage is performed, on an average, in about fifty days. There seems then to have been a good reason for being careful and economical in the consump- tion of the provisions. The witnesses examined in support of the libel were also joined in it as parties. I have received their evidence, as the counsel for the respondent did not object to it ; but it must not be understood that I have decided witnesses in that situa- tion to be competent to prove the allegations of the libel, as a decree in favor of the libellants must, necessarily, be a decree for all of them. Libel dismissed. GEOKGB SMITH AND OTHERS, MARINERS, AND RICHARDS AND BISP- HAM, EOR THEMSELVES, OWNERS, AND ON BEHALF OP OTHERS, OFFICERS AND PASSENGERS, OF THE SCHOONER CASPIAN, V. THE SCHOONER JOSEPH STEWART. CHARLES HOY AND OTHERS, MARINERS, V. THE SCHOONER JOSEPH STEWART, CRANDBLL, MASTER. 1. Where salvors are very meritorious, and the value of the vessel and articles saved is very small, the Court will exceed, in its allowance of salvage, the proportion usually given. 2. Where a vessel is abandoned at sea, the crew, shipped for an indefinite MAY SESSIONS, 1838. 219 Smith V. The Stewart. period, have a lien on her, in the hands of salvors, for their wages due at the last port of delivery before the abandonment. The Joseph Stewart having been libelled for salvage by the parties in the first of the above suits, the claimants in the second suit, who had abandoned the schooner at sea, filed their libel for wages up to the date of the abandonment. It appeared that the libellants in the second suit shipped for indefinite periods ; that they had made several voyages in the Stewart before the abandonment ; and that the abandonment took place by order of the master. On the 9th July, 1838, Judge Hopkinson delivered the fol- lowing opinion in the first suit : There are thirteen claimants in this case, for salvage, in- cluding the owners of the Caspian. Nobody appears to oppose the claim, or to offer any reasons for regulating the allowance. I am obliged to proceed on ex farte evidence, and on that evidence the case appears to be as follows : On the 12th April last the schooner Caspian sailed from Mobile for Philadelphia. On the 25th of the same month she fell in with the schooner Joseph Stewart, on the coast of Flo- rida. The Stewart was loaded with lumber, and was so far sunk as to have nearly two feet of water on her deck ; her hatches were oiff, and she was abandoned by her crew. She had been stripped by another vessel of some of her sails, chains, running rigging, and many other articles. Some of the crew of the Caspian went on board of the wreck ; the sea was break- ing over her the whole time ; they made fast to her a hawser from the Caspian and hauled her alongside that vessel, took off her deck load and put it on board the Caspian, as also the anchors, hatches, and everything left on deck. This so lightened her that they could commence bailing. They gained on the leak, and got her about half clear of water. After pumping for twenty-four hours, two plugs were discovered floating in the cabin, and, on searching, two holes were found in the bottom 220 MAY SESSIONS, 1838. Smith V. The Stewart. of the vessel, under the captain's berth. The holes were four or five inches apart, bored with a 2J or 3 inch auger, were freshly cut, and the plugs new. The holes were then plugged up, and the vessel easily pumped out dry. A fresh breeze having sprung up, the hawser parted. Some of the crew of the Caspian then went on board the Stewart, taking with them provisions and other articles ; and with great exertions and labor, and no small degree of good management and skill, finally brought her into this port. This is the general outline of the case, without dilating on the state of the weather and the hardships and dangers incurred in performing the service. It seems that the Caspian had some passengers on board who took part with the crew in these services, and stand on an equal footing with them in point of merit. The difficulty in this case arises, not in estimating the nature and value of the service, nor in ascertaining, from the frequent adjudications in our own country as well as in England, a rule of proportion for the reward of such a service ; but the similar- ity, between this case and those alluded to, fails in the amount of property to be distributed by the Court. The fund in those cases was large, and, of course, a fourth, a third, two-fifths, or even, as in one case, one-tenth, would afford a handsome remu- neration for the labor and risk of the service, still leaving a large amount for the unfortunate owner. Her.e the fund is so small that the whole of it, distributed among these thirteen salvors, could hardly be considered an extravagant reward for their services. Yet we have no authority to treat this as a de- relict. Authority is against it. Indeed the libellants claim as salvors, not as finders of property which had no owner ; they ask for salvage, for a reward out of the property saved', for their services in saving it. The very nature of this claim is a demand on the owner, for a reasonable compensation, for the service rendered to him in rescuing his property from a total loss; but if the salvors are to take all, the loss would be as total, to the owner, as if his property had been swallowed up by the sea. It would be manifestly absurd to call on the owner MAY SESSIONS, 1838. 221 Smith V. The Stewart. with such a demand, to restore him no part of the property saved, but to tell him they must have all for saving the rest. He is to pay for saving, when nothing is saved. Every reason and principle applied to a claim for salvage, implies that a part of the property saved is to be awarded to the salvors, and the rest restored to the owner. Heretofore under even the most desperate cases, by far the greater part was restored to the owner. Here is our difficulty in the case. After deduct- ing the expenses of these proceedings — necessarily heavy, — and allowing to the salvors even a very moderate, perhaps it may be thought, an inadequate compensation, for their ser- vices, and paying the demand for wages of the crew of the Stewart — not to the time of abandoning her by order of the captain, but to the last port of delivery — there will be but a few dollars left for the owners of the wreck. I will do the best I can for these salvors, consistently with the regard I am bound to pay to the legal adjudications on the subject. I vrill make a short review of these adjudications. I have found no case where one-half of the gross proceeds have been given to the salvors. In the Aquila, 1 Rob. 37, the ship and cargo were found at sea, absolutely deserted, and there would have been a total loss but for the salvors. Sir William Scott allowed two-fifths. In the Trelawney, 4 Rob. 223 (Amer. reprint [Philad. 1804], p. 184), t"he ship was recovered from insurgent slaves, after a severe conflict ; it was considered by the Court as a re- capture from pirates, and one-tenth allowed. In the Blendenhall, 1 Dodson, 414, the ship was captured by the French and scuttled, and so found by the salvors. One- tenth was allowed. In the Raikes, 1 Hagg. 246, the ship was relieved by a steamboat from a perilous situation. The judge wished to encourage this service by steamboats, and allowed £200 for a ship and cargo worth ^£12,500. In Warder v. The goods saved from La Belle Creole, Pet. Adm. Decis. 31, the judge, professing to give " an exemplary 222 MAY SESSIONS, 1838. Smith V. The Stewart. reward," allowed one-third, in a strong case of service and danger. In Tyson v. Prior, 1 Gall. 134, a strong case, one-third was allowed. In Bond v. The Cora, Pet. Adm. Decis. 361, one-third the gross amount of sales was allowed. In Weeks v. The goods saved, &c., and, Jurgerson v. The Maria, Pet. Adm. Decis. 424, which was a case of mere wreck, without any hope of safety, one-third of the articles saved was given. The French ordinance says : " If the effects, however wrecked, are found on the sea, or drawn from its bottom, the third part shall be immediately delivered, without expense, either speci- fically or in money, to those who saved them." In this case the whole amount of sales, of vessel and cargo, was $926 40 One-half of gross sales allowed to salvors, is . $463 20 Charges of sale, 36 60 Proctor's, Clerk's, and Marshal's fees and commission, 121 55 Costs on wages' suit, 12 79 Wharfage, 32 20 Allowed to owners of Caspian, for articles furnished to the wreck, 55 20 Wages of crew to last port of delivery, . . . 151 25 872 79 $58 61 This Statement shows, that by allowing to salvors one-half of the gross sales, and deducting from the other half, all the charges and claims upon it, there will remain, for the owners, but $53 61. The salvage will be divided into thirteen parts, one of which shall be given to the owners of the Caspian, and one to each of the twelve salvors. Decree for the libellants. On the 23d July, 1838, Judge Hopkinson decreed for the libellants, in the second suit, the whole amount of their wages, due at the last port of delivery before the abandonment. DISTRICT COURT OF THE UNITED STATES. liuUxn Sistrirt nf f nttstjUania. NOVEMBER SESSIONS, 1838. JOHN HARRISON, MARINER, V. THE SCHOONER ECLIPSE, WADE, MASTER. 1. Where a master agrees, with a mariner, to carry the latter's goods, free of expense, a charge for freight thereon cannot he supported, as between the master and mariner. 2. Whether the master can bind the owners on a contract to carry goods free of freight, Qu. ■ This was a libel for wages. The case came on before Judge Hopkinson, on the 25th October, 1838, and was argued by 0. Hopkinson, for the libellant, and Fallon, for the respondent. On the 9th November, 1838, Judge Hopkinson delivered his opinion in the case. After examining various matters of fact, by which it appeared that the gross sum due to the libellant was $102 23, and that the respondent was entitled to credits thereon to the amount of $35, the Judge continued, as follows : The respondent claims additional credits. Ist. For freight on the libellant's goods, $88 68. On this subject we have the evidence of the pilot, who says, that he heard the captain of the schooner say to Harrison, " I wish you would fill her up — I won't charge you a cent for it." The witness also says, that the schooner was then in want of ballast, 224 NOVEMBEE SESSIONS, 1838. Harrison v. The Eclipse. and was not full when she went to sea. The only answer to this evidence is the denial of the respondent that he made any such agreement. In the contracts of the master with the mariners, he is the only party who acts on hehalf of the vessel. This was a part of the contract with the mate ; he is induced to put his goods on hoard of the schooner — perhaps to purchase them— on the faith of this promise, and we may treat it as part of his con- tract as m^te. Now, however, the captain tells him, I had no authority to make that promise ; for it is the captain who ap- pears here and takes defence. I would make strong presump- tions to prevent the injustice of such a hreach of promise. If the captain has violated his duty to the owners in making this promise, let him answer to them. But it is he who now sets up this claim, and the owners have nothing to do with it. It is said in Abbott, p. 130, that it seems that the master of a trading vessel, intrusted with his command for the pur- pose of procuring goods on freight, cannot bind the owners by an engagement to carry goods free of freight ; and a case in 1 Taunt. 391 (Dewell v. Moxon), is cited. The case' before us being a contract with a mariner, with other peculiar circum- stances, and the question being between the mariner and the master, in a suit to which the owners are not parties, may be distinguished from that cited. Whether the captain could bind his owners by this agreement, may be settled between them ; but I cannot, on that account, discharge the master from his engagement, under the circumstances of the case. Nor do I mean to admit that, if the question between the master and owners came directly before me, I should accede to the doc- trine above mentioned. I should, at least, give it a careful examination, before I yielded to it; at present, it appears to me to be a restriction on the power of the master in the em- ployment of the ship, inconsistent with the acknowledged authority of the master over the conduct and management of a trading ship. He is considered as the confidential servant and agent of the owners in the employment of the ship, and NOVEMBER SESSIONS, 1838. 225 Harrison v. The Eclipse. they are bound by every lawful contract made by him, relative to such employment. By lawful contract I understand a con- tract not prohibited by the laws of the country. I think the charge of freight in this case cannot be supported. 2d. The respondent claims a charge for the absence of the libellant, without leave, for eleven days, at Galveston. The proof is that he was absent eight or ten days ; that he went off before the vessel was unloaded, which operation it was his particular duty to attend to. No evidence has been given of any permission for him to go ; or that there was any necessity for his absence, either on his own account, or on that of the ship. I take the shortest time mentioned by the witnesses, eight days, and allow a charge against him of seven dollars on this account. On the facts and principles I have adopted, the case will stand finally thus : — Amount due the libellant $102 23 Credits to the respondent : Cash 835 00 Eight days absence 7 00 42 00 S60 23 Decree for the libellant, for $60 23, and costs. 15 226 NOVEMBER SESSIONS, 1838. Jansen v. The Heinrich. PETER JANSEN, AND HANS CASPERN, BANISH SEAMEN, V. THE RUSSIAN SHIP THEODOR HEINRICH, POULSEN, MASTER. LORENZO ANDREAS BANG, PETER CHRISTIANSON, AND DOMINICUS HIORD, DANISH SEAMEN, V. THE RUSSIAN SHIP THEODOR HEINRICH, POULSEN, MASTER. 1. If there is any ambiguity, uncertainty, or otsourity, in the shipping con- tract, especially in the description of the voyage, the construction most favorable to the seamen will be adopted. 2. Where seamen enter upon a voyage, fwithout signing shipping articles, an implied contract is presumed, which binds them to remain with the ship till the voyage is terminated. 3. Where seamen ship for an indefinite period, they are at liberty to leave the ship, after the termination of any particular voyage, and the discharge of cargo at the port of delivery. These were libels for wages. It appeared that Jansen and Caspern shipped on board the Heinrich, at Liverpool, on the 25th August, 1837, and that the other libellants shipped on board the same ship, at Hamburg, on the 30th September, 183T, all of them at 10-25 roubles, or $7 68 per month, and all without signing shipping articles ; that, after the libellants Jansen and Caspern shipped, the Heinrich sailed to Riga, thence to Hamburg, where the other libellants shipped, thence back to Riga, thence to Londonderry, thence to Belfast, thence to Thoone in Scotland, thence to Con- stantinople, thence to Odessa, and thence to Philadelphia, where she arrived on 29th September, 1838 ; that the libel- lants demanded their discharge, and were refused by the cap- tain;, that on the 16th October, 1838, at nine o'clock in the morning, they left the ship ; and that the cargo was not wholly discharged till the 19th October, at midday. At the trial a NOVEMBER SESSIONS, 1838. 227 Jansen v. The Heinrioh. muster-roll was produced, dated at Riga on the first visit, and to which the libellants' names were attached, but it was not alleged that the signatures were theirs. To this roll was attached a supplemental sheet, dated at Riga on the second visit, and on which was the following certificate. " This sheet of paper belongs to the muster-roll of the ship Theodor Heinrich, Captain Poulsen, in consequence whereof the following con- stitutes the roll of equipage of the ship Theodor Heinrich." This certificate was admitted to be signed by the Harbor Mas- ter at Riga. Immediately under the certificate was written : " after dismission of the former crew, were engaged," and then followed the names of the same crew as before, but it was not attempted to be proved that the libellants had signed this paper. After the names were the certificates of the proper officers of the various ports which the Heinrich had visited. On the 2d November, 1838, the cases came on before Judge HoPKiNSON, and were argued by Kane, for the libellants, and Read, for the respondent. Kane, for libellants. Two questions arise in these cases, which must be decided. 1st. Are the libellants entitled to their discharge ? 2d. Are they entitled to their wages ? The only contract into which they entered, was that at Riga ; even this contract they never signed, but, supposing that they were bound by it, their duty was finished, and the contract at an end, so soon as the ship arrived at Riga a second time, or at any other port of discharge. From the moment of such arrival, up to this time, the libellants were entitled to their discharge whenever they demanded it in a legal manner. We are relieved from the consideration of the Russian law, because the libellants never made themselves amenable to it, and never signed a contract which was to be interpreted by the Russian law. The contract is under the law of the port from whence the seaman sails. Babbel v. Gardner, Bee's. R. 87. 228 NOVEMBEE SESSIONS, 1838. Jansen v. The Heinrich. There is no proof of any renewal of the original contract. A renewal must be according to some form ; but there was no renewal here by the Russian form. The Russian code, § 124, requires the signature of the seamen in the presence of wit- nesses ; there was nothing of this kind here ; there was no sig- nature whatever. But suppose that the libellants did renew the original contract, and were bound by its terms, what was it ? It was for a voyage to Liverpool and back to Riga, or to some other port where freight could be obtained. This contract has been fully dis- charged ; they have been to Belfast, Londonderry, and Thoone ; a cargo of hemp has been discharged, another has been taken in ; freight has been obtained to Constantinople and Odessa, and has there been discharged ; a third cargo has been taken on board, and the ship has sailed to Philadelphia ; on this last voyage, most assuredly, the libellants have been totally released from any former contract. Abbott, 608 n. (1). The libellants are entitled, at least, to the wages mentioned on the muster-roll, although these are less than the amount paid at Constantinople when they sailed thence. But, it is alleged, that they have forfeited their wages, by their refusal to unload, and by their leaving the ship. As to the first. When they left the ship, out of 16,180 bushels of rye, which composed the cargo, 15,274 bushels were discharged. The captain had said, that the consignee had obtained all he was entitled to, and the eighteen days allowed, by the charter- party, in which to discharge, had expired. Of course, then, they were entitled to leave the ship. Abbott, 644-5 ; Swift v. The Happy Return, Pet. Adm. Decis. 253 ; The Countess of Harcourt, 1 Hagg. 248; The Minerva, 1 Hagg. 347; The George Home, 1 Hagg. 371 ; Babbel v. Gardner, Bee's R. 87. There is no doubt about the jurisdiction of the Court. The Courtney, Edwards R. 240 ; The Wilhelm Frederick, 1 Hagg. .140 ; Weiburg v. The St. Oloif, Pet. Adm. Decis. 428. NOVEMBER SESSIONS, 1838. 229 Jansen v. The Heinrich. Read, for the respondent. The Russian law must decide here, not the lex loci, or the general maritime law. This is a Russian vessel;, the men en- tered according to the Russian law; and it is of no conse- quence whether they are Russians or no. Any individual who enters on board of a ship is liable to the laws of the country to which she belongs. Every country claims and exercises the right to regulate the service in its own marine. Story, Confl. L. 201, 233. The original muster-roll is authenticated by the proper offi- cer ; and if it does not, in all respects, comply with the Rus- sian code, there must be a usage therefor. We admit that the original voyage ended at Riga. But the second instrument is an extension of the first, and commences a new voyage only to be ended by a return to Riga, and this additional sheet is authenticated by the Harbor Master at Riga. But, at all events, if the voyage was terminable at any port of delivery, the libellants were bound to remain on board till the cargo was wholly unloaded. Abbott, 635. Kane, for libellants, in conclusion. It has not been shown what the power of the Harbor Master is under the Russian code ; that code requires that the seamen shall sign, in the presence of witnesses, and no power appears in the Harbor Master to dispense with this. On the 9th November, 1838, Judge Hopkinson, delivered the following opinion : It seems to be admitted that the first voyage of the ship, from Riga to Liverpool, and back to Riga or some other port, was finished and ended by the return to Riga ; and that the contract made by the libellants, whether at Liverpool or at Hamburg, was fulfilled on their arrival at Riga. Both parties were then at liberty ; the captain to dismiss the men, and the men to leave the ship. If, then, the captain has any claim to the further service 230 NOVEMBER SESSIONS, 1838. Jansen v. The Heinrich. of these men, it must be by virtue of a new agreement. We enter upon the inquiry whether any such new agreement was made, and what it was ; with the preliminary remark, that it is incumbent upon the captain who claims the service, to show his title to it ; to prove the contract by which he claims it. He must support his claim. It is his duty to see that the contract is clear and explicit, at least in two essential particu- lars, first, the description of the voyage, and, second, the rate of wages. If there is any ambiguity, uncertainty, or obscurity in it, especially in the description of the voyage, the construc- tion most favorable to the seamen will be adopted. The in- strument is prepared by the captain ; the seamen sign whatever is put before them, having their eye principally on the rate of wages. They are generally ignorant, illiterate, and imprudent, and it is often necessary to protect them against themselves and their own thoughtless acts. When, therefore, the de- scription of the voyage is not precise, but general terms are used, they will be limited by a reasonable interpretation, by the rules of natural justice, in order to save the seamen from hard and oppressive conditions, arising from a harsh construc- tion of general terms. It is on this principle that Courts of Admiralty, both in England and in this country, have set a reasonable limitation upon the words " or elsewhere," in the description of a voyage. The obligations of the libellants to this ship must be collected from the proceedings at Riga, in October, 1837; and as we have written documents of what occurred there, they will be chiefly relied upon. The writing is found on a sheet attached to the original muster-roll, which is headed— " This sheet belongs to the muster-roll of the ship Theodor Heinrich. Captain J. D. Poulsen. Riga, Oct. 26, 1837." It is not easy to understand what is meant by this heading. How could this sheet belong to a former muster-roll, or con- tract, which was defunct, the voyage described in it ended, the contract performed, and all the parties to it— that is, the NOVEMBER SESSIONS, 1838. 231 Jansen v. The Heinrich. seamen — declared to be dismissed ? This sheet, if it have any force as a contract, must have it as creating a new agreement, between new parties, and for a new object. We must then inquire, first, has it been so executed as to make a contract according to the regulations of Russia ? and, second, to what does it does it bind these men ? The Russian code expressly requires that these contracts shall be signed by the mariners, in the presence of witnesses. As regards the Russian seamen on board the ship, this was done, 'at least so far as to have their signatures in the presence of one witness ; but as to the libellants, they signed nothing, were required to sign nothing, on the contrary, they were told by the Harbor Master that he had nothing to do with them, as they were not Russians. Their names were put down by some- body else, although they could write ; but by whom this was done, or by what authority, we do not know; the libellants never assented to it, or even knew that it was done. A usage has been conjectured, but there is no evidence of it; and we can hardly believe that, under such a government as that of Russia, a Harbor Master has authority to dispense with the law, and substitute his own act for the signatures of the sea- men, and the attestation of witnesses. But if we should grant that the names of these men were put down on the muster-roll by their own consent, or even by their own hands, what do we gain by it? Our only question is, what did the men undertake to perform ? We look in vain to the second sheet for the answer. No voyage is there described, either in precise or general terms. It is declared that " This sheet of paper belongs to the muster-roll of the ship Theodor Heinrich, Captain J. D. Poulsen. Riga, Oct. 26, 1837. In consequence whereof the following constitutes the roll of equipage of the ship Theodor Heinrich. Berbnt." Then fol- lows a list containing the names of the crew. It goes on thus : "After dismission of the former crew, were engaged:" and then we have a list with the same names as before ; but not the least allusion to the voyage to be performed. Nothing but the 232 NOVEMBER SESSIONS, 1838. Jansen v. The Heinrich. names and rate of wages. The names of the four Russian sailors, or their marks, are written by their own hands. The libellants did not sign. At Constantinople, the legation of Russia at that port certify the roll, and insert the names of the libellants on it several months after they had shipped. This certificate has no binding force on these men ; it is not probable that they ever saw or heard of it. If it was other- wise, what does it certify as to the voyage ? That the ship was " bound to Philadelphia ;" thus making Philadelphia the ter- minus of the voyage. To get over this difficulty, it is alleged by the respondent that this second sheet, declared to belong to the first muster- roll, was a renewal, or readoption, of the original contract, as found in that muster-roll. How will this serve the respondent, in the only object of our inquiry, the description of the voyage for which the libellants bound themselves, and from which service it is now alleged they absconded or deserted, in violation of their contract ? Let us grant that they did adopt, or renew, the original contract. What was it ? " To sail for Liverpool, and thence back again to Riga, or some other port for which freight might be obtained." Here is a clear, explicit, and lawful description of the voyage. Perfectly reasonable, and easy to be understood. Will the respondent contend that this was the voyage of the second contract ? Was it so explained to these men ? Did they ever know what were the terms of that original contract? There is no evidence of any such thing. Did the captain so understand it ? If he did, he has been in the gross and continued violation of his contract. On an agreement for a voyage from Riga to Liverpool, and back to Riga, or to some other port, what has he done ? He has never gone to Liverpool at all, which was the first port of his destination, but he has taken these men to Londonderry, to Belfast, to Thoone, to Constantinople, to Odessa, back to Con- stantinople, to Philadelphia ; and now claims the right to take them to Richmond, to Rotterdam, and wherever further he may find it convenient or profitable. And all this is to be NOVEMBER SESSIONS, 1838. 233 Jansen v. The Heinrioh. done under a contract for a voyage from Riga to Liverpool, and back again ! Having no evidence, either such as is required by the Rus- sian law, or even by parol, of the character of this contract in relation to the voyage to be performed, but merely the fact that these men did enter into the service of the ship, at certain stipulated wages, what shall we believe was the contract, judg- ing from the acts of the parties, and what will the law imply from those acts ? The libellants went on board the ship at Riga ; their monthly wages were fixed ; they sailed for Lon- donderry without objection or complaint. Must we not say that they agreed to that voyage ? I cannot doubt it. They received wages for that service. They might there have left the vessel, as there was nothing to bind them to her. The same observation applies to the voyages to Belfast, to Scot- land, to Constantinople, to Odessa, to Philadelphia. They were at liberty to terminate the connexion with the ship, at any of these places ; or to continue in the service, and receive' the stipulated compensation. Both parties were equally at liberty at these points. But when the ship sailed from Con- stantinople, for Philadelphia, I consider that the obligation was mutual to continue their contract until their arrival at Philadelphia. It was an implied contract. The seamen could not have left the ship, to go on board of another, on the broad ocean ; nor could the captain have so dismissed them ; nor at any intermediate port, for, when they sailed for Philadelphia, they agreed to go to Philadelphia. This is my construction of the implied contract, or understanding, between the parties, drawn from their acts ; and this contract is the only one we have to resort to. Upon this view of the case, the libellants, ^ on the arrival of the ship at Philadelphia, were no longer bound to continue with her ; but, if the next voyage proposed was disagreeable to them, they might terminate their engagement here. This, however, will not acquit them of the duty of obedience they owed to the ship and her master, while at Philadelphia, such 234 NOVEMBER SESSIONS, 1838. Jansen v. The Heinrich. as they would have owed, if Philadelphia had been the ter- minus of the voyage, by regular written articles of agreement. What are the facts on this part of the case ? On the 16th October, the ship not being then discharged, these men left the ship, without leave. The ship did not com- plete her unloading for three days after. It is said, first, that this is a forfeiture of the wages, and second, that, at least, they are liable for damages. As to the first, I have explained my views of the law in Magee v. The Moss (Gilp. 230). I think the principles I adopted in that case are applicable to this, and that there is no ground for forfeiture. As to the question of damages. By the general maritime law, as well as by the Russian maritime code, seamen are answerable for any damage sustained by, or because of a violation of, their duty. Where the precise damage can be proved, that will be the measure of damages; when it cannot, the Court must make the assess- ment, according to the circumstances of the case. The libellants left this vessel before she was discharged of her cargo. They did so suddenly, without any notice of such an intention. They did so, it is true, under the belief that they had a right so to do ; and I have given them credit for this belief in refusing the prayer for a forfeiture of their wages. As I have said, we have no specific evidence of damage, but it is not possible that four or five able-bodied seamen — more than half of the whole crew— could have left the ship, at such a time, without loss and inconvenience, which has been followed up by expenses and delays. If the libellants had made out a clear right for leaving the ship, at the time and in the manner they did, they certainly would not have been responsible for these consequences. But, although their absenting themselves was not an aggravated desertion of duty, there was enough of wrong in it to entitle the captain to some redress. In esti- mating it, I can not put out of the case that these men have no cause of complaint on board; they have been sailing in the vessel for more than a year, without the least complaint against the master or his officers, from any one of them. Nor can I NOVEMBER SESSIONS, 1838. 235 Jansen v. The Heinricli. hesitate to believe that, although the captain did not secure himself for their services until the return of the ship to her home, yet that he honestly believed they would remain with him. Such, I doubt not, was his expectation, but it does not make a contract. The conduct of these men, in continuing in the ship, without a word of discontent, or an intimation of any intention or desire to leave her, until their arrival at Philadel- phia, warrants me also in the belief, that it was their expecta- tion and intention to return to Russia in the ship. They hardly expected either to be discharged, or to quit the vessel, at a port so distant from their own home, among a strange people, whose language was unknown to them. In the absence of any ill treatment in the ship, I must look for a motive for quitting her, and I find it in the information they must have received, that the wages given to seamen here are much higher than they are earning. Imputing this motive to them, I shall be more' liberal in my estimate of compensation to the ship, than I would have been under other circumstances. Tlie in- crease of wages they will get, will enable them, without any hardship, to meet a liberal compensation to the captain, for his losses and diflBculties arising from their leaving his service. Decree. That the contract between the libellants and the master terminated with the arrival of the ship at Philadelphia, and the discharge of her cargo, and that the master has no lawful claim upon their service after that time ; that $20 be deducted from the amount appearing to be due to each libel- lant respectively; and that the suits be consolidated and single costs, only, taxed and allowed. 236 NOVEMBEK SESSIONS, 1838. Gibbs V. The Texas. C. & J. GIBBS. V. THE SCHOONEB, TEXAS; SMALL, MASTER. 1. To authorize a bottomry bond by a master, it must be giyen to enable the Tessel to proceed on her voyage, and to leave a port where she is de- tained for necessary repairs, or for claims upon her, and has no funds, credit, or other means of getting money. 2. An anticipated necessity for funds will not justify a bottomry bond. This was a libel for bottomry. It appeared that the Texas was enrolled as a coaster ; that, in April, 1838, being then at Charleston, the captain took out a new register, and sailed for Mantanzas and a market ; that the instructions given to the captain, by the owners, were to take freight from port to port in the United States ; that, be- fore sailing for Mantanzas, the captain gave to the libellants a bottomry bond for $538 62 ; that the items which made up , this amount were as follows : Lumber, loaded on board, $485 36 Insurance and policy, ....... 9 94 Stores furnished, 43 82 and that the Texas had subsequently changed owners. It was alleged that the sale of lumber, which was the principal item of the account, was a mere speculation of the captain and the libellants, and which would not sustain a bottomry bond. As to the charge for insurance, there was no evidence. It was also alleged, in answer to the defence, that the lumber was taken on board in order to raise money, by its sale, to pay the port charges in Cuba. The libel was filed on the 13th De- cember, 1838. The case was argued, on the 2d January, 1889, before Judge HoPKiNSON, by Waln, for the libellants, and G. M. Whakton, for respondent. NOVEMBEE SESSIONS, 1838. 237 Gibbs V. The Texas. Waln, for libellants. The defence consists of two parts : first, it is said, that there was no necessity for the supply ; and, second, that the libellants have forfeited all claim by their delay. As to the first defence, the facts are, that the lumber was necessary to meet the port charges in Cuba. Milward v. Hallet, 2 Caines, 77 ; The Au- rora, 1 Wheat. 96 ; Parmenter v. Todhunter, 1 Campb. 541. As to the delay, it is not such as to work a forfeiture. Wil- mer v. The Smilax, Pet. Adm. Decis. 295. Wharton, for respondent. It appears that this bond was not for the loan of money, which a bottomry bond must be for ; and we have evidence tending to show the whole transaction to have been a specula- tion. As to the item of $43 32, alleged to be for stores, it is for- feited. A lien by bottomry will be postponed to subsequent bond fide purchasers or claimants, if the holder of the bond has delayed, unreasonably, to prosecute his claim. Blaine v. The Charles Carter, 4 Cranch, 328. The charge for insurance is totally unsupported by evidence, and must be abandoned. On the 7th January, 1839, Judge Hopkinson delivered the following opinion in the case. The necessity that gives authority to a master to hypothe- cate his vessel, must be to enable her to proceed on her voyage, to leave a port where she is detained, either for necessary re- pairs, or for claims upon her. Patton v. The Randolph, Gilp. 457. There must be no funds there, and no credit, or other means of getting money. There was no money or credit necessary to get this vessel from Charleston. The bond was given for lumber, which was to be applied — taking the libellants' own statement — to be sold in Cuba, to meet expected expenses there. It was not an existing but an anticipated necessity for funds ; and the ne- 238 NOVEMBER SESSIONS, 1838. Gibbs V. The Texas. cessity was produced by the captain's going to Cuba, for -which there was no necessity. I cannot doubt, either from the preponderance of testimony, or from the attending circumstances, that this purchase of lumber was, in ttuth, a trading speculation, either for the cap- tain alone, or for the joint account of the owners ; and neither would constitute a good cause for bottomry. As to the small claim for stores furnished the vessel, I do not think that there has been any such delay, or want of dili- gence, as to forfeit it. We have no evidence whatever of any opportunity but this of proceeding against the schooner. Decree for libellants for $43 32, and costs. DISTRICT COURT OF THE UNITED STATES. FEBRUARY SESSIONS, 1839. JOHN JOHNSON, MARINER, AND WILLIAM JOHNSON, ADMINIS- TRATOR OF GEORGE ADAMS, MARINER, DECEASED. V. THE SHIP CORIOLANUS, MERRILL, MASTER. 1. Nothing but an extreme case of extraordinary Tiolence, ■where the safety of the vessel or those on board requires it, will justify the imprisonment of a seaman, on shore, in a foreign port, at the discretion of the master. 2. A consular certificate of the facts inducing the summary imprisonment of a seaman in a foreign port, is not evidence, and this Court will always examine the facta for itself. 3. Where a seaman is unjustifiably imprisoned, by the master, in a foreign port, a charge will not be allowed against him, for the amount paid another seaman, hired in his place. 4. It is the settled law of this Court, that the representatives of a seaman dying on the voyage, in the service of the ship, are entitled to His wages for the whole voyage. This was a libel for wages. This case came on for a hearing, before Judge Hopkinson, on the 7th March, 1839, and was submitted to the judge, on the evidence, and without argument, by Grinnbll, for the libellants, and F. E. Brewster, for the respondent. On the 11th March, 1839, Judge Hopkinson delivered the following opinion in the case. 240 FEBKUAKY SESSIONS, 1839. Johnson v. The Coriolanus. The libellant John Johnson ^hipped, at New York, at eighteen dollars a month, for a voyage commencing on the 8th November, 1837. His libel states the voyage to be from New York to Mobile, thence to Marseilles, and back to a port of dis- charge in the United States ; and that the ship arrived at Phi- ladelphia on the 12th February, 1839, making fifteen months and four days, for which he claims, at eighteen dollars a month, $272 25, giving certain credits to be deducted. It appears, however, by a reference to the shipping articles, that the voyage contracted for at New York was for six calendar months, and a port of discharge in the United States. , It also appears, by other shipping articles, that, at Marseilles, the six months having expired, a new voyage was contracted for, from Marseilles to Cette, thence to Rio Janeiro, and thence to a port of discharge in the United States. The new contract was made on 1st May, 1838 ; the rate of wages of the libellant, as well as of the rest of the crew, was reduced to twelve dollars a month. Some attempt has been made to prove that coercion or duress was used, to compel the men to sign these last articles. The proof is by no means satisfactory, and I shall consider the rate of wages to be eighteen dollars a month, for the first six months, that is, to the 8th May, 1838, and to be, for the rest of the voyage, twelve dollars a month. This will make the total amount of wages, for the whole voyage, $216. The captain has rendered an account, in which he allows the libellant eighteen dollars a month to the 1st May, instead of to the 8th. On the second voyage he allows him twelve dol- lars a month, but terminates it on the 24th October, when the libellant was taken from the vessel by a police officer, by order of the captain, put into prison, and never after rejoined the ship, as she came away and left him there, the captain having previously sent his clothes on shored I have no doubt that this whole proceeding, on the part of the captain, was altogether illegal and unjustifiable. I have repeatedly expressed my disapprobation of putting our seamen FEBEUARY SESSIONS, 1839. 241 Johnson v. The Coriolanns. into foreign gaols and dungeons, at the mercy of the local police officers, for oifences by no means requiring such seve- rity. For ordinary misconduct, or insubordination, the power of the master, on board of his vessel, is amply sufficient for all the purposes of discipline and subordination, and it is only in cases of extraordinary violence, where the safety of the vessel or of those on board, requires that the offender should not be suffered to remain there, that he should be taken and im- prisoned on shore. Every act of passion or indiscretion is called by the name of mutiny, and the seaman is hurried off to the unwholesome confinement and dirt of a prison, perhaps in a climate dangerous to life. In this case the man had been many months on board the ship, without any misconduct that called even for slight punish- ment, although it is said he was sulky and no seaman. He had a quarrel with the mate, about which different accounts are given, so that it is hard to say which was most wrong. On the second day after, when it might be supposed the matter was all over and forgotten, and nothing had occurred in the mean time to show any danger from it, a boat is sent to the ship with a police officer, and the man carried off to prison, without a hearing, or any examination of the circumstances of the case, except such as the captain chose to give to the consul. And here I would again correct an error into which captains are continually falling. They seem to believe that if they can get the consent or co-operation of the consul to their pro- ceedings, it will be a full justification for them, when they come home. I wish them to understand that I will judge for myself, after hearing both parties and their evidence, of the necessity and propriety of these summary incarcerations ; and the part the consul may have taken in it, will have very little weight with me. In all my experience, I have never known a consul refuse the application of a captain to imprison a sea- man, nor to. furnish a certificate, duly ornainented with his official seal, of the offence committed, of which he generally knows nothing but from the representations of the captain or 16 242 FEBEUAKT SESSIONS, 1839. Johnson v. The Coriolanus. officers of the vessel. I never suffer these certificates to be read : they are infinitely weaker than ex parte depositions. Our consuls, unfortunately, are merchants also; their profits and their living depend upon the business they can do, espe- cially by the consignments of cargoes to them. It is, there- fore, very important to them to have the good will of the captains of vessels, who may make a good report of them to their owners. Considering that this man was taken from the vessel, with- out any legal and justifiable cause, I have no hesitation in giving him his wages for the whole voyage. For the same reason I reject the credit claimed by the cap- tain, for hiring another man in his place, amounting to |42 ; and for the additional reason that no evidence of any such hiring or payment was given. In deciding upon the credits to be allowed, I shall take them as stated in the captain's book, which, although not strictly regular, has satisfied me of their truth. In the manner in which this case has been referred to me, I think a latitude is given to do what I truly think to be just between the parties. The account will stand thus : Whole amount of wages, $216 00 Credits allowed 78 40 $137 60 As to the claim of the libellant, William Johnson, the ad- ministrator of George Adams, the facts are these : Adams died on board the ship, on the voyage from Marseilles to Rio, on the 10th August, 1838. It is the settled law of this Court that the representatives of a seaman dying on the voyage, in the service of the ship, are entitled to his wages for the whole voyage. This is the only difference between the captain's account and the libellant's. The account stands thus : Whole amount of wages, ^216 00 Credits allowed ' 65 75 ^60 25 FEBKUAEY SESSIONS, 1839. 243 Stansbury's Case. Decree for the libellants, for the amounts due on their accounts respectively, and costs. An appeal was taken by the respondent, upon this decree, to the Circuit Court of the United States for the third Circuit. On the 6th May, 1839, the decree was affirmed, with costs. Judge HoPKiNSON made the following note of this affirmance, on the back of his manuscript opinion. Judge Baldwin agrees with the opinion of the District Court, on all the points, and especially on the subject of im- prisoning seamen by the authority of a captain. Seamen should be imprisoned, in foreign ports, only in a clear case of ex- treme necessity. He said he would probably have gone further in this case than the District Judge had done, if it had come originally before him, and would have given the mariner not only his wages for the whole voyage, but have made him com- pensation for the imprisonment. Decree affirmed, with costs. THE CASE OF THE CLAIM OP RUTH WILLIAMS TO THE SERVICE OF "ISAAC," OR WILLIAM STANSBURT. This was a case of a claim under the Act of 12th February, 1793. It came on, before Judge Hopkinson, on the 31st January, 1839, and was continued, through several subsequent hearings, till the 8th March, 1839, on which day Judge Hopkinson de- livered the following opinion : The hearing of this case commenced on the 31st day of Janu- ary last, and has been attended throughout the several sittings with an increasing excitement and interest. There are ques- 244 FEBKUAEY SESSIONS, 1839. Stansbury's Case. tions and circumstances involved in it calculated to give it more importance than ordinarily belongs to examinations of this description. On the one side we have a citizen of a sister state, coming here under the protection and authority of that state, claiming to have restored to her certain property, of which she alleges she has been unlawfully deprived ; and insisting upon her right to my order to have this property delivered to her by the in- junctions of the Constitution of the United States, which I am hound to obey. In the other party, who denies and resists this claim, we have an individual who has lived among us for more than twenty-three years ; has a wife and family of chil- dren depending upon him, and a home, from all which he must be separated, if the claimant has made good her right. These are considerations that make it peculiarly incumbent on the Judge, who is to decide the question, and tc decide it by the evidence that has been brought before him, to weigh that evi- dence carefully and scrupulously, without prejudice or influence from any other quarter. He is to yield nothing, on the one side to the power and patriotism of the state of Maryland, which have been strongly invoked for the cause of the claim- ant ; nor, on the other, to any feeling for the consequence of his judgment to the respondent and his family ; much less to any opinions of his own on the question of slavery. Nobody recognises more fully and firmly than myself the complete legal and constitutional right of the owner of a slave in and to his person and services ; no one is more deeply im- pressed than I am by the solemn guarantee, which those states of our Union, whose laws permit slavery to exist in them, have received ^nd have a right to exact from every other state ; that this right shall be faithfully regarded, and that if a person held to labor or service in one state by the laws thereof shall escape into another, he shall be delivered up to the party to whom such service or labor shall be due. This right it is my duty and desire to respect and secure, not only as a Judge, sworn to respect and secure it, but as a citizen of the United FEBRUARY SESSIONS, 1839. 245 Stansbury's Case. States ; firmly believing tlie union of these states to be our first and greatest blessing, and to maintain it, our highest duty; and knowing that it cannot be maintained but by a faithful performance of all its obligations and provisions by all the parties to it. In my view, the happiness of black and white, of the freeman and the slave, is intimately, I may say in our present circumstances, inseparaJbly connected with the maintenance of that government, under which, and by which, we have atfained an unexauipled prosperity, and have, secured to us every right which a rational people can wish for or enjoy. 'I make these remarks, because the topics to which they allude found no inconsiderable place in the argument of this case. I take the occasion, too, to observe, that the experience of this case, as well as many others, has shown that this mode of trial, directed by the Act of Congress, is better for both parties, especially for the person claimed as a slave, than a trial by jury could be. This hearing began on the last day of January ; the claimant of course came prepared with the ordinary primd facie proof, sufficient, if uncontradicted, to entitle her to the possession of the respondent. He was taken suddenly in the street, without any notice or expectation of any such design or danger. He could not, therefore, be ready with his proofs and witnesses to repel the claim. It might be necessary to seek for them at a distance, and time was necessary for this purpose. After reading the documentary testimony of the claimant, and examining two of her witnesses, by which the respondent was fully apprised of the nature of the claim, the hearing was postponed, on his application, until the 16th of February. It was then resumed, and the claimant examined another witness, and closed her case. The defence was then entered upon and several witnesses were examined to support it. Another postponement was granted to the 23d of February, to enable the respondent to obtain other witnesses ; and again to the 2d of March, when the respondent examined additional witnesses, and the claimant also produced another. It is obvious that a jury could not have been kept together for this 246 FEBKUAKY SESSIONS, 1839. Stansbury's Case. length of time, and that much important evidence would have been excluded by a more hasty conclusion. I Tfill now proceed to an examination of the case, as it ap- pears on the evidence that the mrties have respectively offered ; for it is only by that evidence, and not on any surmises or conjectures, conclusions or belief, not founded upon it, that I must raise my opinioH. Judicially I can have no belief or opinion about it, but such as I can justify by the evidence. In the power of attorney, given by Ruth Williams', the claim- ant, to her grandson, William W. Hall, to prosecute this claim, she states that her negro man "Isaac," who calls him- self William Stansbury, absconded from her service on or about the 10th day of February, 1816. We have here an important date ascertained, which we must carry with us throughout the inquiry, which turns so much on the accuracy of dates. The whole controversy settles down into the ques- tion, whether the person now brought before me and who calls himself William Stansbury, is or is not the man Isaac, who was the slave of William Williams, in his lifetime, and after- wards came into the possession of his widow, Ruth Williams, and who escaped from the service of Ruth Williams in the month of February, 1816. In short, it is a question of identity of person. This power of attorney bears date on the 19th day of January last, and was executed in consequence of a letter written to Mrs. Williams from George P. Alberti, dated at Philadelphia, on the 29th December, 1838. In that letter Mr. Alberti informed her, that he understood she had a slave named Isaac, alias William Stansbury, who absconded from her about the year 1815. He gives the 'name of Isaac's mother, and tells her, that his features are just the same as usual, and advises her how to proceed to have him arrested and delivered to her. It is no part of my business to inquire how Mr. Alberti got his information of a transac- tion which took place nearly twenty-three years before; I mention the letter pnly as being the commencement of this pro- ceeding. Mr. Hall came to this city with his power of attor- FEBKUAKY SESSIONS, 1839. 247 Stansbury's Case. ney and some witnesses to identify the person of Isaac. He was arrested in the street, and brought before me ; I have given every opportunity to both parties to settle this question of identity, by their evidence, and will now, briefly as I can, compare the testimony oiFered, and endeavor to come to a satisfactory conclusion from the whole. Identity can be proved only by inspection of the person, and, when such proof has been given, it may be disproved or discredited by the proof of circumstances absolutely incompatible with it. But such cir- cumstances must be clearly proved, and they must be abso- lutely irreconcilable with the direct proof of identity ; for, if the counter proof is doubtful, or, at least, not brought to a reasonable certainty, or may be consistent with the evidence of identity, the direct and positive proof must prevail ; subject, however, to the general and just rule of law which throws the burden of proof on the party who claims the recovery of that which is in the possession of another. If, therefore, the cir- cumstances themselves and the proof of them be such as to bring the testimony for the claimant into so much uncertainty and doubt, that the mind cannot be satisfied to rely upon it, the legal consequence is that it must fail. In short, the proof of identity by inspection will be sufficient, unless it be wholly discredited, or so impeached by contradictory evidence that the judgment cannot be satisfied to depend upon it. The proof of ownership, says the Act of Congress, must be "to the satisfac- tion of the judge." A conscientious witness will be cautious in his testimony of identity, and take care not to be too abso- lute and positive in his knowledge of it, for assuredly strange mistakes have been made upon this subject by witnesses, whose honest intentions could not be questioned. By a certificate from the Register's office of Prince George County, Maryland, it appears that letters of administration were granted to Ruth Williams and James Beck on the per- sonal estate of William Williams, deceased, on the 7th day of October, 1806, and in the inventory of the estate, we find a "boy named Isaac," about ten years old, appraised at $200. 248 FEBRUAKY SESSIONS, 1839. Stansbury's Case. The respondent is claimed to be this boy Isaac ; and the ques- tion is, whether he is so or not; The first witness examined on the part of the claimant, was Beale Duval, whose manner of testifying and deportment throughout his examination was such as to impress us with the entire sincerity of his testimony. This witness now resides a few miles from the city of Baltimore, but in 1806 he resided in Prince George County, and did so until about two years past, about two or three miles from the house of William Williams ; knows Mrs. Williams ; was frequently at her house ; there was a considerable family intimacy between them ; knew all her servants for many years ; he has seen the respondent a vast many times ; has seen him at the house of his master and mistress, and at his (the witness's) house ; h,e went by the name of Isaac ; and was claimed by Mr. Williams as his slave to his death ; after his death, Mrs. Williams always had him in pos- session ; he was born on Mr. Williams's place ; witness knew his mother ; he had a brother, still ^n the family when witness left the county,; don't recollect precisely when he ran away ; he has been gone twenty years and upwards ; witness said that he had no doubt that the respondent is the boy Isaac; he recognised him as soon as he saw him ; he has a mark on his forehead, occasioned by a burn when young. The cross-examination related to the time when the witness heard of the claim now depending ; and from whom he heard of it ; at whose instance he came here ; of seeing the respon- dent first in the street ; when he knew him directly ; that he was told by a young man that respondent was in the street, describing the place ; had not seen him, until then, for up- wards of twenty years ; thinks that when Isaac went away he was between fifteen and seventeen years of age ; he repeated, that he never saw a person he could recognise more certainly ; he is not much changed ; has a beard now ; but had not then ; yesterday witness asked him if he knew him ; he would not acknowledge it ; would not commit himself, or own any of the transactions of which he spoke to him. FEBEUARY SESSIONS, 1839. 249 Stansbury's Case. William Williams was the next witness. He said : I reside in Prince George County ; was born there ; at fourteen years old went to Baltimore, for seven years, and then returned to Prince George ; knows Mrs. Ruth Williams ; knew Mr. Wil- liams in his lifetime ; Mr. Williams raised me until I was fourteen years old; am now forty-six; he died in 1805 or 1806; knew the boy Isaac from his infancy; he was nine or ten years old when Mr. Williams died ; left him at the house of Mr. Williams when I went to Baltimore, and found him there when I returned ; be ran away in 1815 or '16 ; his mother and two brothers lived there at the same time ; witness gave an account of the brother and mother of Isaac ; this boy (Isaac) was always claimed by Mrs. Williams as her slave after the death of Mr. Williams ; he had a mark on his forehead, occasioned by a burn ; I recognised him as soon as I saw him ; I understand he had an uncle named Nashe (Ignatius) Beck, who belonged to Joseph Beck, a brother of Mrs. Williams. On a cross-examination the witness said that Mr. Williams was his uncle and raised him ; that he lived about four miles from Mr. Williams ; was at his house twice or three times a week ; on my return from Baltimore, I saw Isaac at my store and at his mistress's ; I spoke to Isaac yesterday ; he said he did not know his master or mistress, mother or brother, or the state or county ; that he did not know where he was born, nor where he came from. John Riddle was sworn : he said he resides in Prince George County, Maryland ; is forty-nine years old ; has known him (the respondent) ever since he knew himself; lives three-quar- ters of a mile from Mrs. Williams ; intimate in her family ; knew her people; knew the boy named "Isaac," a yellow boy ; we were raised together ; I was eight or ten years older than he ; he was hired out ; he was claimed by Mr. Williams in his lifetime as his slave, and by Mrs. Williams after his death ; I always understood she took him as her part ; I knew the mother of the boy ; she was a slave to Mr. Williams ; she bought her freedom, and now lives in Washington ; the re- 250 FEBRUARY SESSIONS, 1839. Stansbury's Case. spondent is the same man; is not changed; saw his brother a few weeks ago at Mrs. Hall's, a daughter of Mrs. Williams ; there is a strong resemblance between the brothers ; I have no doubt that this is the man ; he had a scar over one of his eyes ; the witness points to the scar. Cross-examined : I saw him a month or two before he went away ; it is twenty odd years ago ; about the time the war was ended. With this evidence and the certificate of the letters of ad- ministration, and inventory of the personal estate of Mr. Wil- liams, the counsel for the claimant closed his case, — but at a subsequent hearing produced Dennis Duval as a witness, whose testimony I shall state here, that the whole of the claimant's evidence may be brought together. He was examined after several of the respondent's witnesses. He said : that he resides in Prince George County, and has done so all his life ; is forty-nine years old ; lives about one and a half miles from Mrs. Ruth Williams ; always intimate in the family, visiting there constantly ; knew all her people ; knows the boy (the respondent) ; knew him at Mrs. Williams's house ; I recollect his running away ; I think he was some- thing like twenty years old ; a stout youth ; think he had a little mark on his forehead, occasioned by a burn ; scalded ; have not seen him since, until to-day ; I recognised him im- mediately ; can't recollect exactly the year he went away, but thought it was between 1817 and 1820 ; the fact was known in the neighborhood ; he was advertised ; I have no doubt that this is the boy. The cross-examination related to the question of his rela- tionship to Mrs. Williams, and Beale Duval ; he was related to neither, and the witness said, he was to have come here as a witness some weeks ago, but was sick ; that he came at the request of Mrs. Williams ; he had no conversation with her on the subject ; she never showed him the letter (Alberti's), re- ceived from this quarter about the claim, nor did she speak of any ; she told me that her servant was here in prison, and FEBRUARY SESSIONS, 1839. 251 Stansbury's Case. asked me if I did not think I should know him ; thinks the scar on the forehead was on the left side, but that it does not form any part of my recollection of him ; his face is familiar to me ; he had heard Mr. Williams (the witness) after his re- turn home, say that Isaac had a mark ; probably I might have asked Williams if he had a scar ; I first saw him where he is now ; nobody pointed him out to me as the person on trial ; the witness said he had been with Mr. Alberti and Mr. Hall the evening before, and the conversation was about the boy ; he does not recollect what he said nor that he told them what he could prove ; the witness said that on coming into the court room, Mr. Hall pointed out the man to him ; he now says, Mr. Hall, Williams, and myself came into the court room this morning, and I said, " There sits the man ;" and on a question, he added, " Mr. Hall did not point him out to me, or point his hand towards him;" on a question put by the Judge, who reminded him that he had said that Mr. Hall did point out Isaac to him, and showed the manner in which it was done, the witness replied, that he was satisfied that he was mistaken, when he said that Mr. Hall pointed out the man to him when they came into the Court this morning. I cannot but observe here the confusion and errors which this witness fell into in the course of his examination, not with any intention to impute any improper design to him ; I do not believe he had any, but to claim some indulgence for other witnesses who have been treated, for similar mistakes, with great severity. In the first place, as to time, this wit- ness thought that Isaac went away between the years 1817 and 1820, when this event happened in February, 1816 ; yet I do not doubt that Mr. Duval spoke to the best of his recol- lection. In the second place he stated as a fact that Isaac was advertised, and afterwards admitted he had never seen the advertisement, that he only heard so ; that Mrs. Williams was the person who had told him so ; now, as a very superior de- gree of intelligence has been claimed for the witnesses of the claimant, and been the subject of high eulogy, one would sup- 252 FEBRUAKY SESSIONS, 1839. Stansbury's Case. pose that they knew the difference between hearsay, and a fact within their ''own knowledge, to which only they should testify. But a more remarkable instance of confusion or inadvertence in this witness is, that he said distinctly, that on coming into the court room, Mr. Hall pointed out the respondent to him ; he afterwards said he did not, but that he immediately said " There sits the man ;" and on my "question, he said, he was mistaken when he said Mr. Hall pointed him out. I recollect no mistake so extraordinary as this in any other witness in the whole course of this examination ; a fact was distinctly stated to have happened but two or three hours before it was given in evidence, and then it is withdrawn, the witness saying he was mistaken when he stated it. Again, this witness was in conversation, the evening before he gave his evidence, with Mr. Hall and Alberti, and he did not recollect what he said in this conversation ; nor that he told them what he could prove. I most truly and seriously acquit this gentleman of afty im- proper motives or intention to state a falsehood, or conceal the truth ; he was evidently hurried and confused. But if this may happen to one of his standing and intelligence, it should not be visited too harshly upon those who are his inferiors in both, and whose inferiority has been pressed as a reason why their testimony should not be considered of equal or of any weight. I have thus taken an ample review of the evidence by which Mrs. Euth Williams has supported her claim to the labor or service of the person she has arrested and brought before me, under the name of Isaac, or William Stansbury. If that evi- dence cannot be disproved, or has not been disproved, it can- not be denied that it is sufficient to overflowing, to establish her right. It is clear, positive, and unhesitating, from wit- nesses of ah undoubted character and intelligence, who cannot be suspected of any wilful misrepresentation, or any careless and culpable indifference to the consequences of their testi- mony, to themselves and to others. They have spoken confi- dently, what they truly believe ; if their testimony and if the FEBRUARY SESSIONS, 1839. 253 Stansbury's Case. fact, that is, the identity of William Stansbury with the boy Isaac, who ran away from Mrs. Williams in February, 1816, be of a character about which mistake cannot reasonably be presumed or believed, it must be admitted that her claim has been well established, and it would be hardly necessary to give any attention to the testimony produced on the part of the respondent. No one, however, of professional experience in trials at law, who has had opportunities of observing the errors which witnesses, of the best character, innocently fall into in delivering their testimony, not only of long past, but of recent transactions, will be willing to say that any evidence, from whatever witness it may come, may not be founded in some mistake. On the subject of the identity of persons, in- stances have occurred of the most surprising description. They have occurred in relation to brute animals, as well as to men. Controversies have arisen about the property of a horse, and numerous witnesses, of unexceptionable character, have testi- fied for the one side and the other with equal positiveness. On one occasion, I think it was in Chester County, the horse was brought into the court room ; was standing in the presence of the witnesses for their examination, when they gave their evi- dence, without producing the least change of belief in any one of them. The counsel for the claimant, adverting to the re- spondent's witnesses reminded us, how often highwaymen have escaped by having their confederates ready to prove an alibi, by an artful narration of circumstances, all true except as to the time. On the other hand, we should also remember the lamentable instances in which innocent persons have been con- victed and executed as highwaymen, on proof of identity as positive as that we have in this case ; not, I agree, with equal opportunities of knowledge, but with equal good faith in the witnesses. I well remember a remarkable case, tried in June, 1804, in New York, in which the uncertainty of evidence of identity was wonderfully exemplified. I have since obtained a report of the trial. It was an indictment for bigamy against one 254 FEBRUARY SESSIONS, 1839. Stansbury's Case. Thomas Hoag, alias Joseph Parker. The question was whether the prisoner was the person who, under the name of Thomas Hoag, had married one Catherine Secor, four years hefore, having another wife then living. He denied that he was the man, or that Thomas Hoag was his name, and insisted that he' was in name and fact Joseph Parker, and that he was never married to Catherine Secor. Numerous respectahle witnesses, wholly disinterested, testified that the prisoner had lived and worked with them, that they knew him well, and that he was Thomas Hoag. Among the circumstances by which they knew him was a scar on his forehead, which the prisoner had. Ben- jamin Coe, one of the judges of the County Court, testified that Hoag had lived and worked with him, that he had married him to Catherine Secor, and he was as much satisfied that he was Thomas Hoag, as that he (the witness) was Benjamin Coe. Other witnesses swore to his identity with equal positiveness. But, what is more strange, Catherine Secor, the woman who was said to be his second wife, swore that she becamer ac- quainted with him in September, 1800 ; that he married her in December 25th, of the same year, and lived with her till the latter end of March, 1801, when he left her. She said, "I am as well convinced as I can be of anything in the world, that the defendant now here is the person who married me, by the name of Thomas Hoag." On the other side, witnesses equally respectable swore, with equal certainty, that the person was Joseph Parker ; and they traced their knowledge of him living in the city of New York from time to time in the years 1799, 1800, 1801, with circumstances that made it impossible that he could have been in the county of Rockland, where the marriage with Catherine Secor was solemnized, at the period of that marriage. So the question stood, and was thus finally decided. Two of the witnesses for the prosecution testified that Thomas Hoag had a scar under his foot, occasioned by his treading on a drawing-knife ; that the scar was easy to be seen. His feet were exposed to the Court and jury, and no scar was there ; and there was an end of the question. The FEBRUARY SESSIONS, 1839. 255 Stansbury'a Case. prisoner was really Joseph Parker, and -was not Thomas Hoag. But does anybody think of imputing the crime of perjury to the witnesses who swpre positively, as well as circumstantially, 'without reservation, that he was Thomas Hoag ? By no means. It is therefore a mistake in the argument to say that if, upon the whole evidence of this case, the true or most probable con- clusion should be that the respondent is really William Stans- bury, and not Mrs. Williams's "Isaac," any imputation of perjury, or of any other legal or moral offence, will rest upon her witnesses. We may therefore go to the examination of the evidence given on the part of the respondent, without any fear of taking anything, even by suspicion, from the respectable characters of the opposing witnesses. In order to overthrow or disprove the evidence of the claim- ant, it is necessary that the respondent's evidence should be more certain, more satisfactory, less liable to mistake, than hers. If they are incompatible, as assuredly they are, if they cannot both be true, then we must take that which can be most safely relied upon. The object is to reach the truth of the case, through and by the evidence, and not to take any- thing to be truth from any prejudice or preconceived opinions, nor from surmises and suspicions, however strong they may be, and whatever disposition we may have to adopt them. For every fact to which I give my belief, I must be able to say, " Here is the proof of it." As a preliminary remark to a review of the respondent's testimony, I will observe that I have no faith in any one's recollection of dates and times, if he has nothing by which he can ascertain them but the mere act of Ms memory. On the other hand, if memory acts not upon the insulated point of time, but upon certain circumstances of a character to fix them- selves on the memory, and the times of those circumstances are either of public and unquestionable notoriety, or can be proved by credible written documents, then it is obvious that 256 FEBRUARY SESSIONS, 1839. Stansbury's Case. the evidence is not to time, but to facts, and the time is ascer- tained by the facts thus proved. Justice to the respondent requires of me, although at the expense of considerable labor, to give the same careful exami- nation of his testimony that I have given to that of the claim- ' ant. The first witness was William Butler. He says he knew Stansbury about the year 1815 ; was in his company in New York. This is of little importance, for he mentions nothing by which this date is remembered, unless it can be connected with the testimony of Captain Whippey, so as to be corroborated by it. George Melburn. — Swears .that he knows Stansbury ; has known him ever since the war, and knew him during the con- tinuance of the war. This witness here refers to a circumstance of public notoriety to fix the time of his acquaintance with Stansbury. He speaks of the building of the batteries on the west side of the Schuylkill for defence against an expected attack by the British. He says that he and Stansbury went out together with the colored people to assist in that work. He is certain they went together, and he knew him a year before that. Now, it is a fact of general notoriety that the colored people did go out to work at these batteries, and that this took place in the fall of 1814. If then it is true that the witness and the respondent went out together to this work, putting aside^ his declaration that he knew Stansbury a year before, it is undeniable that he cannot be Mrs. Williams's boy Isaac, who did not leave her service until February, 1816 ; that is, about sixteen months after the work alluded to. The witness adds that he is satisfied Stansbury is the man ; he was intimate with him ; that is, that he did not only see him on that occasion, but knew him before and after. He says he thinks that he knew him to be employed in throwing wood out of boats in 1811 or '12 ; to this I pay little regard. On a close cross-examination he said nothing that appeared to FEBRUAKY SESSIONS, 1839. 257 Stansbury's Case. weaken his testimony, and his manner betrayed no uneasiness of feeling. He gave a simple account of his own history. Abraham Dutton. — Knew Stansbury twenty-five years ago ; he (the witness) was going in a sloop bringing wood to the city, and Stansbury was at the Drawbridge, throwing the wood out. He fixes the time to be twenty-five years, because he lived at Mount Holly ; it is twenty-seven years since he went there, and he lived there seven years, and saw Stansbury two years after he went there ; he knows from his marriage the time he went to Mount Holly ; it will be twenty-seven years next December since he was married. This is not very satis- factory as to the time of his first knowledge of Stansbury, although his calculations are pretty accurate ; but the defect is in fixing by any circumstances that he did know Stansbury while he lived at Mount Holly. If he is not mistaken in that, all the rest proves that he did know respondent several years before Isaac left the service of Mrs. Williams. Ignatius Beck. — This is a very important witness, and his testimony should be closely examined ; for, if he has not uttered the most broad and unsheltered falsehoods, William Stansbury cannot be the claimant's man Isaac. The appear- ance of Beck, now far advanced in life, with the proof of it on his gray hairs, was without exception becoming; nor did a very severe cross-examination betray him into any impropriety or appearance of feeling. He is the brother of the mother of Isaac who absconded from Mrs. Williams. He has sworn dis- tinctly that he knew Stansbury in 1810, or thereabouts ; knew him before the war began ; is satisfied of it. He then men- tions the circumstances by which he fixes the time of his knowledge. He says he moved out of Seventh Street into St. Mary's Street, which was in 1810 ; that Stansbury, whom he had seen before, came and helped him to unload his furni- ture, and he has known him ever since; that is the man; he had got him to haul wood for him ; he was away two or three years after he got acquainted with him, but in 1817 he saw him working along the wharves. Still, we have nothing but 17 258 FEBRUAKY SESSIONS, 1839. Stansbury's Case. his memory to fix the time of his moving into St. Mary's Street. He put this beyond a doubt by producing the receipts of his landlord, Robert Mercer, for rent, — the first receipt, in a book, dated December 10th, 1810, for three months' rent ; another in June, 1811. No others were turned to. He said he moved there in the fall of 1810, before the receipt was shown ; and he could not read. He says that his sister Amy, the mother of Isaac, came to see him (the witness) about ten years ago ; stayed with him about nine or ten months ; that he is not Stansbury's uncle ; he said, from his age, and the respect the colored people had for him, they were in the habit of call- ing him sometimes "Uncle Beck," and sometimes "Father Beck." He is sixty-five or sixty-six years old. On cross-examination, he gave a particular account of the family of his old master, Joseph Beck ; of his own manumis- sion and history. He said he understood Stansbury to say that he came from the northward, somewhere about New Bed- ford. This may be connected with Captain "Whippey's evi- dence. He stated a fact of much importance ; that is, that during the visit of his sister Amy here ten years ago, — a visit which continued for nine or ten months, — he never saw her and Stansbury together. This is incredible, if she was the mother of Stansbury and Beck his uncle. Unless this old man, so respectable in his appearance and demeanor, and unimpeached by a whisper against his veracity or general character, and contradicted by no one in the par- ticular facts he has narrated ; unless the whole of his story is a false and foul fabrication, a series of corrupt perjuries, it is not possible that William Stansbury is the runaway boy Isaac. Jonathan Judas.— He also speaks of the building of the bat- teries over Schuylkill ; he was active in getting the colored people to go out and work; he got the names of those who agreed to go; among them was that of William Stansbury; the witness wrote his name down— this he says is the same person ; he has been acquainted with him from that day to this ; Stansbury went out with him ; witness says he had the FEBEUAEY SESSIONS, 1839. 259 ' Stansbury's Case. honor of being Captain that day ; they met, 360 in number, in the State House Yard ; Stansbury then appeared to be from 20 to 22 years old ; never talked with him about the place he came from ; witness was born in 1784. Is this all a fabrica- tion ? By what testimony, either to the facts themselves or the credibility of the witness, is it proved to be so ? Hem-ietta Reading. — Knows Stansbury, and first knew him in 1812, as she believes, from a circumstance that occur- red, which was the wedding of Richard Paxson ; which was on 1st April, 1813, and of his sister, which was on the 1st of May following ; she became acquainted with Stansbury the fall be- fore these weddings ; has known him ever since. I do not lay much stress on this witness, for although it was proved by the records of the meeting that she was accurate as to the time of the wedding, she has mentioned no circumstance which ena- bles her to say that it was the fall before these events that she knew Stansbury ; it is mere memory of time unassisted by cir- cumstances, or nearly so. Amy Curry was brought here on my suggestion ; she is the mother of Isaac who absconded from Mrs. Williams. I shall say but little of her testimony, as she stood in a most difficult situation, if this is her son. She however clearly and dis- tinctly asserted that he is not. She said, pointing to the re- spondent ; this is not Isaac, he is none of mine. She spoke of the mark as being on Isaac's eheeJc differing from those who said it was on his forehead, as this man's is. It will be re- membered that I asked this witness if she belonged to any re- ligious society ; she replied she did ; to the Methodist. I then made a serious appeal to her conscience and her fears if she said anything untrue ; reminding her that it would be no ex- cuse for her that she did it to save her child ; she said she knew all this, and persisted in her story. If she has deceived us, she has deceived herself more fatally. On her cross-examination she certainly fell into some con- tradictions, which may have their effect on her credit; but they were not more striking or strange than those of Mr. Den- 2G0 FEBKUAEY SESSIONS, 1839. Stansbury's Case. nis Duval. I would shelter them both by the same mantle of charity ; she too was somewhat hurried and confused on her cross-examination. She also says that she did not see this man (Stansbury) during her visit to her brother, I. Beck, ten years ago. The only remaining witness is Captain Whippey. He is con- fined in the debtors' apartment (from whence he was brought to testify), where the respondent has also been kept. After respondent had been there a day or more, he asked me (says the witness) if I had any recollection of coming from Nan- tucket, in 1810 ; his naming the sloop and the master's name, brought it to my recollection, that I was a passenger in her. He told me he was a boy at the time on board of her ; I don't recollect anything of this man ; but there was a colored boy on board, who ran away from the vessel on our arrival at New York ; I asked him how he came to know me ; he said that hearing my name mentioned in the prison, had led him to ask me the question ; the boy, as far as I can recollect, was rather of a lightish cast. The witness then mentioned circumstances which were satisfactory to show that this voyage was performed in the winter of 1810. He also said that he had mentioned these circumstances to no one in the prison. Stansbury men- tioned to him the year, the season of the year, and the name of the sloop and her master, all correctly. This is very pow- erful evidence, unless we may account for it by the supposition of the claimant's counsel, that is, that there is a colored man in the prison to whom all this happened, and that he made the communications to Stansbury, to use them for himself. This is an ingenious surmise, but where is the proof of it ? If such was the belief of the counsel, it might have been at once veri- fied by sending to the prison, or asking the question of the keeper of the prison, who was here in Court with his prisoner. Why did he trust so important a matter to an argument, when it was susceptible oi proof . One circumstance remains to be noticed, which has been vehemently pressed by the counsel for the claimant. It is cer- FEBRUARY SESSIONS, 1839. • 261 Stansbury's Case- tainly not -without its importance', although it is claiming too much for it to say it is conclusive on the whole case. It is alleged that the respondent has not, either at this hearing or to any of the witnesses, his friends and intimates, ever told who he is or where he came from. This is not strictly correct. Ignatius Beck testifies that he understood from Stansbury that he came from the northward, somewhere about New Bedford ; and if he is the boy Captain Whippey spoke of, this is not im- probable. It would have been more satisfactory to have had a better account of him ; but his habitual silence on this subject and the want of more proof in relation to it, is but a circum- stance of suspicion, that he has or may have some reason for saying nothing about it; — still it is but a circumstance of sus- picion. It cannot prevail against the mass of positive evidence he has brought to prove that whoever or whatever he may be, he is not the slave of Mrs. Williams. I cannot adopt the rea- soning, that because he does not show where he comes from, therefore he ran away from Mrs. Williams ; — that because he does not show who he is, therefore he is her boy Isaac. Unless we carry this circumstance out to this conclusion, it cannot avail the claimant, whatever suspicion it may throw on the re- spondent. What reasons he has for this concealment I do not know ; but I cannot say that they have any reference to the claim or right of Mrs. Williams. On the contrary, they cer- tainly cannot, have any such reference, unless her witnesses have one and all sworn falsely. I will put a familiar case : A inan is charged with having stolen property — say a horse — in his possession. On the trial the prosecutor swears positively that the horse is his and was taken from him on a certain day. If the defendant proves by numerous witnesses, to the satisfaction of the Court, that he had the horse in his possession one year before the prosecutor lost his horse, and has had him ever since, is it any answer to such testimony to say. You have not shown where you got this horse ? Is it not enough to show that it cannot be that which belonged to the prosecutor ? 262 FEBKUAEY SESSIONS, 1839. Stansbury's Case. To the witnesses of the claimant I can freely say, You have done no wrong ; you have honestly testified to an opinion ; for it is only to an opinion, which you truly and conscientiously believe ; but you have been mistaken in a matter, on a ques- tion, as to which many honest men have been mistaken before you ; and if you should now be satisfied that you were mis- taken, you will rejoice that it has done no wrong. But if I were to discredit the witnesses of the respondent ; if I were to treat their testimony as unworthy of belief, I could address no such consolatory language to them. I must say to them broadly and plainly. You are branded and blackened with a foul crime before God and man, volunteered by you in the most unnecessary and wanton manner. You were not called upon to speak at all, if you knew nothing of the case ; but if you did speak, you were bound to tell the truth and the whole truth, by the most solemn obligations. Dare I pronounce such a condemnation upon these people, unimpeached by any at- tempt upon their general good character and veracity^ or by anything apparent in their conduct here to bring suspicion upon their evidence ? In such a case, can I turn them all off as con- federates and conspirators with the respondent to defraud the claimant of her property, while I am unable to lay my finger on a particle of evidence or a single circumstance to justify or defend such a course toward them ? It may be well for coun- sel — for I presume it was truly his opinion — to dispose of all the testimony given for the respondent, by charging it in mass, to be falsehood and perjury ; to have been fabricated by con- federacies and conspiracies. He may be satisfied with his opinion, that the object of the counsel of the respondent is not the truth ; but to encourage the poor wretches (as he desig- nates the witnesses of the respondent), who have come here in their perjuries ; tut as I have no such knowledge or opinion, I cannot found a decree upon them, nor in any manner adopt them. Nor can I agree with the counsel, that it is enough to discredit Beck that he is of the same race and color with the respondent. This would put these people in a strange and FEBRUAKY SESSIONS, 1839. 263 Stansbury's Case. perilous condition. It would be enough to have a white witness, however connected with the claimant by the ties of neighborhood, friendship, or blood ; however united with her in a common feeling and interest for such claims. By the law of this state, which I am bound to administer, in this respect, the black witnesses stand here as entirely competent as the white, and their credit is to be tried by the same rules and principles. I am no more authorized to say, nor disposed to say, that any witness for the respondent is to be discredited because he is of the same race and color with the respondent, than I would be to discredit for the same reason a witness for the claimant. Neither the law nor my sense of justice will warrant any such discrimination. There is one broad line of discrimination between the witnesses of the claimant and of the respondent. The first speak of the identity of a person they have not seen for twenty-three years, and who was then a youth, and can only deliver an opinion concerning it : they can only testify to recollection ; to memory, after a long lapse of time ; while the others speak of one they have seen con- stantly from time to time, for a longer period ; who has never been out of their view for any great length of time ; and of facts and circumstances, which must be true or false. It would be a strange principle for a Court of Justice to adopt, in trials of this sort, that no black witness is to be believed ; that per- jury must be presumed of all of them. The whole examination then is a mere mockery and waste of time. It may be that these witnesses have imposed falsehoods upon me for truth ; for in what case or by what color of witnesses may that not be ? But I have no reason to presume it, or to believe it ; and I do not. If they have done so, be it on their own consciences. I have done my duty in giving the weight to their testimony to which, in my judgment, it is entitled. I pretend not to look into the hearts of men ; to discover the de- ceit that may be hidden there ; nor do I incur any responsi- bility if I am so deceived. I confess that during the examination and discussion of the 264 FEBHUAKY SESSIONS, 1839. Stansbury'a Case. case, I have had, occasionally, doubts and misgivings about the truth of it. I am not even now entirely without them. How can it be otherwise under the pressure of such conflicting testimony ? But I feel it to be my duty to decide it by the whole evidence, and by such a comparison and estimate of it as the rules of evidence have prescribed for cases of contradic- tory testimony ; and not to yield my judgment to surmises and suspicions that I cannot defend by just conclusions from the whole testimony. In this case I must refuse the certificate applied for, and order William Stansbury to be discharged from the arrest. Ingraham, for claimant. 0. G-iLPiN and D. P. Brown, for respondent. DISTRICT COURT OF THE UNITED STATES. iBuitin iisttitt of f BUEstiliiitiiiii. MAY SESSIONS, 1839. THE UNITED STATES OF AMERICA V. COMMODORE CHARLES STEWART. Cases on the question of the enlistment of a minor in the Navy of the United States. This was a habeas corpus, addressed to Commodore Stewart, as commanding the Navy Yard at Philadelphia, requiring him to produce the body of Bishop Priest, alias Lewis Johnson, al- leged to he a minor improperly enlisted in the Navy. The proof of minority wholly failed, and the petitioner was re- manded. In connexion with the case, Judge Hopkinson prepared the following summary of cases, on the question of the enlistment of a minor in the Navy : The question came before the Circuit Court of the United States for the first Circuit, in 1816. U. S. v. Bainbridge, 1 Mason, 71. One Eobert Treadwell, an infant of the age of twenty years and about eleven months, born on the 2d August, 1795, enlisted in the navy, to serve two years, in May, 1815. He had deserted, was brought to trial before a Court Martial, in June, 1815, and was sentenced to serve in the navy for two years from the 19th June, and to forfeit the wages then due him. He had a father living — then absent at sea, — and it ap- 266 MAY SESSIONS, 1839. United States v. Stewart. peared that the enlistment had been without the father's consent. It was contended for him : 1st. That Congress had no power to pass an Act authorizing the enlistment of minors without the consent of their father. 2d. That Congress had passed no Act authorizing such enlistment. 3d. That it was not a contract for the benefit of the infant. The other side took these grounds : 1st. That the contract, as made by the minor, was a valid one. 2d. That if he might, at any time, have avoided it, he could not do so after he had been le- gally sentenced by a Court Martial. 3d. The Acts of Con- gress, for enlistments in the navy, make continual and parti- cular mention of hoys, who are required by the nature of the service. Judge Story delivered the opinion of the Court. He stated the first question to be, whether the contract of enlistment, supposing it to have been made without the consent of the father, was void or not. By the common law, the father has a right to the custody of his children during their infancy. He is also entitled to the benefit of their labor, while they live with him, and are maintained by him. These rights, however, depend upon the mere municipal rules of the state, and may be enlarged, restrained, or limited, as the wisdom or policy of the times may dictate, unless the legislative power be con- trolled by some constitutional prohibition. The Constitution of the United States gives Congress the power " to raise and support armies," and " to provide and maintain a navy," and " to make all laws which shall be necessary and proper" to execute these powers. The services of minors may be useful and important to the country, both in the army and navy. In the navy, the employment of minors is almost indispensable. Congress, therefore, have the power to enlist minors in the naval service, and the exercise of the power is justified by the soundest principles of national policy. They need not require the consent of the parents; such an assertion is extra- ordinary ; it assumes that the legislative power cannot be ex- MAY SESSIONS, 1839. 267 United States v. Stewart. ercised in derogation of the common law. Minors are enrolled in the militia, to perform military duty ; and in the British Navy minors are not only enlisted without the consent of their parents, but employed against their own consent. Do the laws of the United States authorize the enlistment of minors into the Navy ? All the Acts authorize the employment of midshipmen, who are invariably minors. All the Acts since June, 1798, autho- rize the President to engage boys, in the ordinary duties of the navy. In no one of the laws is the consent of the parents or guardians required. The laws manifestly contemplate that it is a personal contract made by the infants themselves, for their own benefit. They are entitled to the pay, bounty, and prize- money. As to the case of a voidable contract made by an infant, at common law, it is meant that the contract is voidable by the infant, at his own election, and not by the assent or dissent of the parents. The Acts of Congress could not intend to autho- rize an infant to enlist in the navy, and yet to avoid the con- tract at his election. " Upon the whole, as Congress have authorized ' boys' to be engaged in the service of the navy, without requiring the previous consent of their parents to the contract of enlistment, that contract, when fairly made with an infant of reasonable discretion, must be deemed to have a semblance of benefit to him, and to be essential to the public welfare, and, therefore, binding to all intents and purposes." The acts respecting enlistments in the army provided " that no person, under the age of twenty-one years, shall be enlisted by any ofiicer, or held in the service of the United States, without the consent of his parents, guardian, or master, first had and obtained, if any he have." Afterwards, in January, 1813, the enlistment of minors, over eighteen years of age, was expressly authorized ; and the proviso which required the consent of the parents, &c., repealed in December, 1814. (2d Story's Laws, 1285, 1433.) 268 MAY SESSIONS, 1839. United States v. Stewart. The case of Emanuel Koberts, 2d Hall's L. J., 192. Before C. J. Nicholson, Baltimore County, 1809. The Constitution gives to Congress the power of raising and maintaining a navy ; the petitioner enlisted in the service of the United States ; it is, therefore, a proceeding under the authority of the United States. It is alleged that the party is only sixteen years of age, and was drunk when he enlisted. The Court recognises the contract of enlistment as a con- tract or agreement in which the United States was one party, and the petitioner the other. In the extreme case of a child eight or ten years of age, the Court would discharge him, because of his incapacity to make ■ a contract ; not an incapacity arising from the general principle that he who has not attained the age of twenty-one years is incapable of binding himself, but from an actual imbecility of mind, owing to his tender years. The petitioner is not of this description. If he be only sixteen years of age, he is remark- ably well grown. " Although it is a general rule that a person under twenty- one years of age cannot bind himself by contract, yet I am far from saying that this rule will apply in its unlimited extent, to prevent young men from enlisting in the service of their country, or to authorize their discharge upon an application to the Courts of the United States." He was of opinion that the Court had no right to interfere in the case. Commonwealth v. Gamble, 11 Serg. & R. 93. Before the Supreme Court of Pennsylvania, in 1824r. Gibson, C. J. " The single questioh to be decided is, whether the enlistment of a minor, into the corps of marines, is void by any Act of Congress, or at common law. The Act which regulates enlistments in the army, prohibits the enlistment of minors, except as musicians; and, on the other hand, the Act which regulates the enlistment of seamen, expressly authorizes the enlistment of minors." The marine corps has no neces- MAY SESSIONS, 1839. 269 United States v. Stewart. sary connexion with the army ; it is a part of the naval esta- blishment, and is exclusively subject to the orders of the Secre- tary of the Navy. He thinks that the contract of enlistment in the navy, by a minor, is good, independently of the statutes, at common law. Such a contract is good, if for the benefit of the minor, and he is far from being convinced that the contract of enlistment is not of this kind. He puts the case on the ground of public policy, which requires that a minor be at liberty to enter into a contract to serve the state, whenever such contract is not forbidden by the state itself. This is the common law of England. The petitioner was in confinement, on a charge of desertion. The Chief Justice said, " The law is clear, that he must abide the sentence of a Court Martial, before he can contest the validity of his enlistment." Prisoner remanded. Commonwealth v. Murray, 4 Binn. 487. In 1812. The syllabus of the case is : " Under the Act of Congress (of 31st January, 1809, 2 Story's Laws, 1109), authorizing the President of the United States to cause to be engaged certain able seamen, ordinary seamen, and hoys, to serve in the navy, an infant who has arrived at years of discretion, and has neither father, master, nor guardian, may make a valid contract to serve according to the Act, notwithstanding he has a mother with whom he resides at the time, and whose consent was not given to the contract." " An infant owes reverence and respect to his mother, but she has no legal authority over him, nor any legal right to his services." "Under the constitutional power of Congress to provide and maintain a navy, that body may by law authorize minors to enter into contracts for service in the navy, notwithstanding such contracts if made by an infant might not be binding upon him at common law." Opinion of C. J. Tilghman. Cites Art. 1, sect. 8, of the Constitution, giving Congress 270 MAY SESSIONS, 1839. United States v. Stewart. power to raise and support armies, and to provide and maintain a navy ; tWs includes all powers necessary to the object intended. The service of persons, under twenty-one years of age, is use- ful to the country and to themselves. Certainly infants, not under the control of any other person, may make such a valid contract. He gives no opinion whether infants may not engage themselves in the navy, without the consent of parents, master, or guardian. In this case there was no father, master, or guardian, and the mother had no legal rights. The peti- tioner was of an age fully to comprehend the nature of the engagement, and there was no person who had any lawful authority over him. Yeates, J. It has not be^n contended that an infant under the years of discretion, or one whose services have been engaged by a personal contract, can lawfully engage in the navy. The petitioner was seventeen years and seven months old. His father was dead ; his mother had no legal rights ; there was no prior contract ; and the Court presumes this con- tract which he has made is for his benefit. Breckenridge, J., goes on the ground that the contract is for the benefit of the infant. He had neither father nor guardian, nor any means of living, except the trade of a shoe- maker, which his health did not permit him to pursue. All idea of the Act of Congress is excluded. The Judge will not touch it, as it has nothing to do with the case; he can give no authority to the other contracting party. Congress cannot change the principles of the common law; the legislature of a state, alone, may do it. MAY SESSIONS, 1839. 271 Fox V. The Lodemia. EVAN FOX V. LEVI PAINE, MASTER, AND WILLIAM S. EEED, WILLIAM MURPHY, AND ISAIAH DUNLAP, PART OWNERS OF THE SCHOONER LO- DEMIA AND ELIZA. 1. E. F., a part oifner of a vessel, known to be so ty the other owners, not having, when he became a part owner, complied with the Acts of Con- gress, such omission not being for purposes of fraud or concealment, one of the other owners obtained an enrolment of the vessel, swearing that he and some others, totally omitting E. F., were sole owners. E. F. is entitled to ask the Court for security, from the other owners, for the safety of the vessel on a voyage not approved by him. 2. An omission in the registry and enrolment of an American vessel does not make her foreign, but, at best, only deprives her of her American privi- leges. 3. It is not unlawful for Americans to be part owners of a foreign ship ; but she will not become entitled thereby to American privileges. 4. Where the owner of one-eighth of a schooner disapproved of a voyage sanctioned by the other part owners, the Court ordered the other part owners to secure the dissentient in double the value of his share. The libel in this case alleged that the libellant was the owner of one eighth part of the schooner; that the other owners, to wit, Levi Paine, William S. Keed, William Murphy, and Isaiah Dunlap, were about to send her to sea, on a voyage to New Orleans, against the consent of the libellant ; and prayed for security in the usual way, to the amount of the libellant's interest in the schooner, conditioned for her safe return. Stipulations having been given to abide by the decree of the Court on the petition, the vessel was allowed to proceed to sea. The application was, at first, resisted on the ground that the libellant had no interest or ownership in the schooner. A supplemental answer was afterwards filed, setting forth that, although the libellant might hold a bill of sale, for one eighth of the schooner, from John Compton, a former owner. 272 MAY SESSIONS, 1839. Fox «. The Lodemia. yet that, as neither the libellant nor Compton had complied with the requisitions of the Acts of Congress, not having de- livered to the Collector of the port the former enrolment of the schooner, nor applied to the Secretary of the Treasury for an order on the Collector to grant a new enrolment and license, nor having taken and transmitted to the proper Collector, the oath or affirmation required by law, they, or either of them, were not entitled, by the law of the land, or the practice of the Court, to ask the interposition and aid of the Court in the manner set forth in the libel. It appeared that the libellant had not, on his becoming a part owner, complied with the requisitions of the various regis- try acts, &c. ; that his omission to do so was not for any pur- pose of fraud or concealment; that the bill of sale, from Compton to the libellant, was drawn up by an officer in the custom-house where the schooner was subsequently enrolled ; that William Murphy, another part owner, had caused the schooner to be enrolled as being the sole property of himself together with Levi Paine, William S. Eeed, and Isaiah Dunlap, he making oath to that effect ; and that, at the time of such enrolment, the interest of the libellant in the schooner was fully known to the other part owners. The case came on for a hearing, before Judge Hopkinson, on the 3d June, 1839, and was argued by St. G. T. Campbell for the libellant, and G. M. Whakton for the respondents. Campbell, for the libellant. The interest of the libellant, and the jurisdiction of the Court are undoubted. The only question is, whether or no the libel- lant has forfeited his right to come into Court, by any act or omission on his part ; that is, by not having his name inserted as an owner on the enrolment and license ? There is nothing in the Act of 31st December, 1792 (1 Story's Laws, 269), respecting enrolments and licenses, which deprives the party of the right to come into this Court. No fraud has been in- tended upon the revenue here ; the bill of sale to the libellant MAY SESSIONS, 1839. 273 Fox V. The Lodemia. was drawn by a custom-house officer, at the very place where the vessel was enrolled, and it is by the neglect of that officer that the libellant's name has been omitted from the documents. The libellant is in fact a part owner, whatever the enrolment or license may say, and, as such, has a right to the protection of this Court. The other owners, by omitting to put his name in the papers, cannot deprive him of his rights, most especially against themselves. Bronde v. Haven, Gilp. 595; Stretly V. Winson, 1 Vernon, 297 ; Graves v. Sawcer, Sir T. Raym. 15. Whakton, for respondent. The libellant has neglected or refused to comply with the laws of the United States, in regard to the ownership of vessels, and yet he comes into Court to claim all the privileges and rights of an owner according to law. Act of 18th Feb., 1793 (1 Story's Laws, 285) ; Act of 31st December, 1792 (1 Story's Laws, 268), §§ 3, 4, 5, 11, 14 ; Act of 2d March, 1797 (1 Story's Laws, 453). The libellant has endangered the national character of the vessel by not complying with the fifth section of the Act of 1792. In England, the law makes all bills of sale of vessels void, unless the revenue regulations are complied with ; but here the vessel only loses her national character and privileges. The libellant is not the part owner of a national vessel, and therefore this Court will not aid him. Campbell, for libellant, in conclusion. All the other part owners knew of the libellant's interest. In regard to the alleged violation of the fifth section of the Act of 1792, the time therein allowed has not yet expired. If a citizen of the United States was part owner of a prize, he could come into Court and ask for such security as is now demanded. On the 18th June, 1839, Judge Hopkinson, after stating 18 274 MAY SESSIONS, 1839. Fox V. The Lodemia. the facts of the case as already reported, delivered the follow- ing opinion. The ownership of the libellant has been made out very clearly. The schooner appears to have been built by one John Compton, for himself and others. On the 15th September, 1838, he executed bills of sale to the other ownefs, in the pro- portions to which they were respectively entitled, to wit, one fourth to William S. Eeed, one fourth to "William Murphy, one eighth to Levi Paine, and one eighth to Isaiah Dunlap, the other one fourth remaining his own. On the 15th October, 1838, Compton transferred one eighth of the schooner, that is, one half of his fourth, to Evan Fox, the libellant, for the con- sideration of $669 96. There is nothing to impeach the vali- dity or fairness of this sale ; on the contrary, there is positive proof that Fox gave full value for it. The interest of Fox, to the amount stated in his libel, being thus established, the defence is left on the ground set forth in the supplemental answer, that is, that the libellant does not appear to be an owner of the schooner in her enrolment and license, and has not complied with the requisitions of the revenue laws. We must recollect that this is not a question between the United States and this vessel, or her owners, or any of them ; nor a question of the rights of this vessel, or her owners, in navigating her under the laws of the United States, nor to what privileges she is entitled under those laws. It is a ques- tion between the owners themselves, and their rights against each other. It is in full evidence that the respondents well knew of the purchase, by the libellant, of one eighth part of this schooner, from the same person, Compton, from whom they derived their title. The officer of the custom-house at Bridgetown, where she was built, also knew of the bill of sale from Compton to Fox, it being drawn by him. It seems, also, that Fox applied at the custom-house of this port, to have his name inserted in the enrolment and license of the schooner, and produced his MAT SESSIONS, 1839. 275 Fox V. The Lodemia. bill of sale, but was told that, as all the owners resided in another district, new papers could not be granted here. There was, therefore, no attempt at fraud or concealment by Fox, either from the other owners, or the government. The right of Fox, and the agreement between him and Compton, by which he obtained it, were well known to the other owners. Yet, in April last, William Murphy, one of the owners, went to the custom-house at Bridgetown, and there swore that he, together with Levi Paine, William S. Keed, and Isaiah Dunlap, were the sole owners of the schooner, wholly omitting the name of Fox. Now, putting Fox out of the question, how are these respondents the sole owners ? They have shown title to but three fourths. Whatever right Compton had not transferred to Fox, he assigned to his creditors, on the 26th October, 1838, eleven days after his transfer of one eighth to Fox. We find, then, that Murphy, well knowing of Fox's right, goes to the custom-house, and swears that he, Paine, Reed, and Dunlap, are the sole owners of the schooner, and gets the enrolment and license, accordingly ; and now, when Fok claims, against them, his right as a part owner, they tell him he has lost it, because his name is not in the enrolment and license. And why is it not there ? By whose act was it omitted ? Did Murphy give Fox notice of his intention to take out the enrol- ment and license, and to omit his name ? Never. It is im- possible for any Court to sanction such a defence, unless under the imperative commands of the law. The omission in the registry and enrolment of this schooner, does not make it, in point of fact, a foreign vessel. It can but deprive her of the privileges of an American, but her owner- ship is, in truth, American. Granting that the omission of the name of Fox has deprived the vessel of American privileges, whose fault was it ? If a fraud has been committed on the revenue laws, whose fraud was it ? Certainly not the libellant's. He had no part in the false statement made at the custom-house ; it was not known to him. There was a double deception practised by Murphy ; 276 MAY SESSIONS, 1839. Fox V. The Lodemia. first, on the custom-house, and then on Fox, and now Mur- phy attempts to visit the consequences of his illegal act on the libellant. But suppose the consequence of this omission were even to convert the schooner, in point of law, into a foreign ship. Is there anything unlawful in an American citizen becoming a part owner of a foreign ship ? Certainly not. He cannot claim for her American privileges ; but, as between the owners, their rights are the same. These owners have entered her as an American ship, the tonnage duties have been assessed as such, and they cannot now be allowed to tell this Court that their knowingly omitting to insert the libellant's name in her license, has deprived her of her national character. It is ordered and decreed, that William Murphy, William S. Reed, Isaiah Dunlap, and Levi Paine, enter into stipulations in the sum of $1340, being double the estimated value of one eighth part of the said schooner Lodemia and Eliza, to Evan Eox, the libellant, owner of the said one eighth part, for the return of the said schooner to the amount of the share of the said Evan Fox ; and, unless they shall do so, they do severally consent that execution shall issue forth against them, their heirs, executors, administrators, goods, and chattels, whereso- ever the same shall be found ; and upon this being done, by s\ifficient sureties,, the said schooner shall be released from arrest. MAY SESSIONS, 1889. 277 Colien V. The Amanda. V. THE SCHOONER AMANDA FRANCES MYEICK, PERRY, MASTER. A bottomry bond having been given to a party, in consideration of his as- suming the debts due by a vessel, she left the port •without opposition, and payment of the bond was afterwards contested, on the ground of the debts not being satisfied. This defence was required to be clearly made out, in order to contradict the primO, facie proof afforded by the bond. This -was a libel for bottomry. The libellant, a citizen of Charleston, S. C, claimed the sum of $1529 97, being the amount of a bottomry bond given him, less a credit allowed for freight and commissions on certain goods, ■which had been transported in the schooner, on his ac- count. It appeared that the bond was given in consideration of the libellant becoming liable for certain debts due for ne- cessary repairs to the schooner, and that, after the bond was given, she sailed from Charleston, without opposition. The respondent alleged that the consideration for which the bond was given had failed, as the charges for repairs were not paid, and the schooner and her owners still liable therefor. It was also alleged that there were overcharges on some articles in the account. The case came on, for a hearing, before Judge Hopkinson, on the 14th June, 1839, and was argued by H. M. Phillips, for the libellant, and Gr. M. Wharton, for the respondent. On the same day Judge Hopkinson delivered the following opinion. The bond is, primd facie, conclusive that the amount claimed on it has actually been furnished to the vessel. What defence has been made ? 1. A charge on account of freight on the libellant's goods. This is not disputed and must be allowed, as also a charge for commissions, on the same account. 278 MAY SESSIONS, 1839. Scharlock v. The Globe. 2. Certain small overcharges have heen alleged, which have not been proved, and cannot be allowed. 3. It is alleged that the debts, the assuming of which was the consideration of the bond, have not been paid, and that the vessel, and her owners, are still liable on that account. The only proof offered of this is the copies of the bills, without re- ceipts. These are not originals, and there is no proof as to who made them out ; they were offered by the libellant, to show that his account was correct, but not to prove payment. It is in evidence that the schooner was allowed to leave Charleston, without any claim being made on these bills, and we must con- clude that the accounts have been paid, or that the creditors are satisfied with Mr. Cohen's security. The account will stand thus : Amount of bond, §1881 86 Credits allowed, 361 89 $1529 97 Decree for libellant for $1529 97, and costs. An appeal from this decree was taken, by the respondent, to the Circuit Court of the United States for the third Circuit ; but it was afterwards discontinued. CHARLES H. SCHARLOCK, MARINER, V. THE BARQUE GLOBE, AMES, MASTER. 1. Where it is endeayored to charge a mate, on the ground of negligence, for a difference between the amount of goods landed from a vessel, and that required by the invoice, it must be clearly shown what amount was placed on board, and what landed. MAY SESSIONS, 1839. 279 Scharlock v. The Globe. 2. A mate cannot be charged, on account of negligence, for not keeping a proper account of the goods taken on board a vessel, when he was ordered on other duty, by the captain, during the loading of the ship. This was a libel, by a mate, for wages. It was alleged, in the answer, that, when the cargo of the Globe was landed, at Philadelphia, there were two hogsheads of sugar less than the number required by the invoice ; and that the libellant was justly answerable for this deficiency, because of his negligence in keeping the accounts. The case came on, for a hearing, before Judge Hopkinson, on the 5th August, 1839 ; and was argued by Hikst, for the libellant, and J. Campbell, for the respondent. On the same day, Judge Hopkinson delivered the following opinion. The amount of wages claimed is not disputed, but a deduc- tion is claimed for two hogsheads of sugar, said to be short in the cargo. The libellant was first mate of the barque ; and it is said that he is liable for this deficiency. We must first ascertain that there is a deficiency, that is, that all the cargo put on board, at Pernambuco, has not been delivered here. To ascertain this we should know what was put on board, and what was delivered. We know neither, accurately. As to what was put on board, we have an invoice and bill of lading. The first was made in the counting-house of the ship- pers, who can answer for its accuracy. Did that quantity leave the stores ? Was it delivered to the vessel ? It had to go from the stores to the wharf, or beach, and thence, by lighters, to the vessel. Who kept the account ? Who testifies what went from the stores, and what was put on board ? Why may not the loss have happened in the transportation ? We do not know what was put on board ; the accounts are various, some making it more, some less, than the invoice. What was landed here ? We have no satisfactory evidence. A young man, who kept no tally or account but by his memory, says that there were 1777 hogsheads landed, that is, two hogs- 280 MAY SESSIONS, 1839. Soharlock v. The Globe. heads short. But in so large a number it is not possible to rely upon his unsupported accuracy. The mate, who did keep a tally, told some of the witnesses, on the wharf, that there were 1780, that is, one too many. There is no certainty here. But the counsel for the respondent has put his case on the only ground it could rest upon. Fraud or embezzlement is not pretended, but the charge is negligence ; and the negligence was this, that, it being the duty of the first mate to attend to shipping the cargo, and to see that it is all right and corre- sponds with the invoice and bill of lading, if the invoice and bill of lading had a greater number than actually came on board, he should have corrected the error. These principles are, in general, true ; but how do they apply to this case ? In the first place, we have no evidence that the mate was ever informed what was in the bill of lading or invoice ; or that they were ever shown to him, or attempted to be compared with his account of the cargo. The captain signed the bill of lading in conformity with the invoice, and does not seem to have inquired further about it. But, secondly, a more satisfactory answer is, that this busi- ness of taking in the cargo, was not wholly trusted to the mate ; that he was sent away, by the captain, on other busi- ness, and a great part of the sugar, above four hundred barrels, were taken in, of which no account was taken by anybody. We cannot make the mate answerable for this negligence of other persons, while he was absent, on other duty. The accpunt will stand thus : Whole amount of Trages, «j28 00 Credits allowed, 53 80 S74 20 Decree for the libellant for $74 20, and costs. MAY SESSIONS, 1839. 281 Cornier v. Sawyer. JEAN H. COENIER V. SIMON SAWYER, MASTER OP THE SCHOONER FREDERICK REED. Where a quarrel occurred between a master and a mate, and the latter left the vessel, to consult the Consul, hut returned, saying that the Consul advised the matter should be "made up ;" and the master, third parties having mediated between them, agreed to do so ; the mate has no cause of action, against the master, because of such quarrel. This was an action for assault and personal damage. It appeared tliat the parties, wMle in Porto Rico, quarrelled, and the respondent disrated the libellant, who was a mate ; that the libellant refused to go before the mast, and went to see the Consul ; that after some days, during which time other persons had mediated between them, the libellant returned, saying the Consul advised that "the matter should be made up, and dropped," to which the captain agreed; that the libel- lant had returned to his duty as mate, and had been paid his full wages on his arrival ; and that, afterwards, this suit had been commenced. On the 7th August, 1839, the case came on, for a hearing, before Judge Hopkinson, and was argued by H. Hubbell, for the libellant, and GtBRHARd, for the respondent. On the same day Judge Hopkinson delivered the following opinion. This was a very proper case for compromise ; there were faults on both sides. The parties had mutual complaints against each other. The captain complained of habitual in- solence, insubordination, and refusal to obey his orders ; of gross carelessness, or want of skill, in the libellant's conduct as mate, and of this he has proof. The mate complains of harsh treatment, coarse and abusive language, and unprovoked 282 MAY SESSIONS, 1839. Cornier v. Sawyer. and oppressive punisliments. Botli had some reason for these complaints. It was a fair case for compromise and mutual concession ; and this was what the Consul advised. It appears that the Consul said they " had better make it up," and, there- fore, the mate was again received ; that is, the captain did drop it, gave up his causes of complaint, and certainly was entitled to expect the same to be done on the other side ; otherwise they did not make it up, they did not drop it, but . the captain only did so. Such was not the advice of the Consul, by which the libellant was willing to abide. The mutual con- cession, as advised by the Consul, was what the libellant came and offered to the captain, and what the latter accepted ; by this both parties were to be restored to their original relations and positions, to the status ante bellum ; the captain has per- formed his part of the treaty, the mate endeavors to withdraw from his. The libel is dismissed, without costs. DISTRICT COURT OF THE UNITED STATES. AUGUST SESSIONS, 1839. WILLIAM SOKBES, MAKINBR, V. STEPHEN PARSONS, MASTER OF THE SHIP SUFFOLK. 1. Where a person ships as cook and steward, he thereby undertakes that he has experience and skill to enable him to perform the duties of those positions. 2. Where a party ships for a particular employment, and either will not or cannot perform its duties, if his deficiencies arise from wilfulness or ob- stinacy, he is a fit object for punishment; if from incapacity, he is entitled to no particular favor from the Court. 3. The law which governs the deportment of men to each other on shore, cannot be applied to their habits and intercourse on board of a ship. 4. A seaman is, in general, entitled to recover damages for an assault and battery from the officer of a ship, first, where personal violence is inflicted, not excessively, but wantonly and without provocation or cause ; second, where there was provocation or cause, but the punishment was cruel or excessive ; third, usually, when the punishment is inflicted with a deadly, or dangerous, weapon. 5. A rope is the proper instrument of punishment on board of a ship. 6. A party who shipped as cook, and was unwilling or unable to do his duty, and who kept the galley in a fllthy condition, was a fit subject for punishment. 7. A blow with a, dirty frying-pan, or wiping a dirty knife on the face of the person whose duty it was to keep those articles clean, is not a very ag- gravated or cruel assault. This was a libel for assault and battery, with an additional article for wages. It appeared that the libellant shipped on board the Suffolk, at Shields, on the 6th August, 1839, as cook and steward ; 284 AUG-UST SESSIONS, 1839. Forbes v. Parsons. that he could not, or did not, discharge his duty in a proper manner ; and that he was several times chastised by the res- pondent, on that account. The case came on, for a hearing, before Judge Hopkinson, on the 30th September, 1839, and was argued by Bkookb, for the libellant, and Bulkley, for the respondent. On the 4th October, 1839, Judge Hopkinson delivered the following opinion. The libel in this case, with the amendment added to it, con- tains two grounds of complaint. The first charges several acts of personal violence, committed by the respondent upon the libellant, at different times, for which damages are claimed. The second is a demand for wages alleged to be due to the libellant for his services as cook and steward on board the Suffolk, on her late voyage from' the port of Shields, in the kingdom of Great Britain, to Philadelphia. The former charge will be first considered. By the shipping articles it appears that the libellant shipped as cook and steward. Evidence has been given on the part of the respondent to show that when the libellant offered himself to the ship, as her cook, he represented himself to be well qualified to perform the duties of that service ; that he said he was a good cook, and had been in that capacity on board another vessel for nine months. Some attempt was made to contradict this testimony, but I am inclined to believe it, be- cause it is natural that an inquiry would be made of his capa- bility to perform the duties he was to be hired for, and that he would answer aflSrmatively. It is not, however, of importance whether the libellant did or did not make this direct allegation of his fitness for the place he offered himself to fill ; it must be presumed and implied from his contract. He was engaged as the cook and^ steward of the ship ; he was hired and paid for his services in that capacity ; and he thereby undertook that he had experience and skill to enable him to perform these services, at least reasonably well. AUGUST SESSIONS, 1839. 285 Forbes v. Parsons. That the respondent chastised the libellant, on several oc- casions, is not denied, but it is alleged that it was not severe or unreasonable, and was justified by the discovery, soon after the vessel got to sea, that the libellant was unable to perform the duties he bad undertaken ; and that, from carelessness or obstinacy, he did not even do as well as he could ; that the victuals were so badly cooked as to be unfit for food ; and that his galley, and cooking utensils, were kept in a state of dis- gusting dirt and filthiness. It cannot be doubted that his cooking was exceedingly bad, either from want of skill or wilful neglect ; and the evidence is satisfactory to show that his galley and pans were kept in a very dirty condition. The bad cooking is proved by the crew, his own witnesses, as well as by the officers of the ship. Complaints were made of it by the crew, to the captain ; so that it was not only the table of the cabin, or the taste of the officers, that was ofiended, but the appetites of the sailors could not encounter the libellant's cooking. The captain and mate were frequently obliged to cook, not only for themselves, but for the crew. The men once went, in a body, to the captain, with the complaint that the victuals were so badly cooked that they could not eat them. The fault was not in the ship's provisions, which, it is admitted, were good. The libellant has endeavored to excuse himself for this fault, by charging it on the inconvenient smallness of the galley, and the insufficiency of his cooking utensils. He has certainly failed in this. Not only the officers of the ship, but competent disinterested witnesses, who have examined the galley and utensils, testify that both are as good, and, indeed better, than are usually found in a vessel of the same size. It is also proved by the witnesses of both parties that the ship had the same galley, and fewer pans, on her voyage from Boston to Havana, and thence to London and Shields, than on her re- turn, but that no complaint was made, by the former cook, of any deficiency in his conveniences for cooking, nor was there any complaint of his cooking by officers or men. So stands the case of the libellant, on the question of his 286 AUaUST SESSIONS, 1839. Forbes v. Parsons. performance of his duties as cook and steward of the ship. If his deficiencies were the result of carelessness or obstinacy, he was, doubtless, a fit object of punishment, and if he was really- ignorant and incapable of the duties of the place he had assumed, he was guilty of a fraud and deception in undertaking to perform them, and comes here entitled to no particular favor. However this may be as to .his cooking, it can hardly be de- nied that, with ordinary care and industry, he might have kept his galley and pans clean. Upon the subject of his ignorance and incapacity, we cannot avoid to remark that it was of very serious importance to the officers and crew of a ship. To have before them a long voyage, with the disheartening prospect of having their food set before them in a condition hardly fit to be put into their mouths, was indeed a trial of patience and temper that few men would pass through and maintain their good humor. The defects of an ordinary seaman may be supplied by his comrades, but the cook stands by himself, and if he fails, no substitute, unless by an accident, can be found. To have a good dinner spoiled by the cook, is only next to , having no dinner. The stomach has a wonderful control over the man and his passions, and a good-natured man, disap- pointed of his dinner, may become very cross. It is further in evidence that, when the cook was spoken to, by the officers, for his bad cooking, he would make rude and insolent replies. All the witnesses, however, on his part, testify that he never was insolent or disobedient to any order given him. Having thus stated the cause and provocation given by the libellant, for the injuries he complains of, we must look to the conduct of the other party, and see whether he has exceeded the bounds of moderation, in punishing the offences of the libellant ; for it must not be understood that this, or any other provocation, will justify cruel and immoderate chastisements. Libels in this Court, for assaults and batteries, committed on the high seas, are becoming so frequent, and have some- times been for such trivial injuries, that it is well that the prin- ciples which govern me in deciding them, should be distinctly AUGUST SESSIONS, 1839. 287 Forbes v. Parsons. explained. The expedition -witli wtich suc^ suits are disposed of in this Court, being generally terminated in a few days, naturally brings the complaints here, as the necessary delays of the common law Courts, unless in cases of extraordinary ag- gravation, make it impossible to obtain redress there. Neither the parties nor their witnesses can be detained until the trial can be had in the course of the_ business of the Court. If, therefore, the doors of this Court were not open to such com- plaints, much oppression, and many grievous injuries, might be suffered, without redress. On the other hand, it must be re- membered that the speed and facilities of trial here, with the moderate costs attending it, offer a temptation to seamen, un- der bad advisers, — generally their landlords, — to try experiments in bringing suits on false and frivolous pretences, to take their chance of getting, by trial or compromise, something from the master. If unsuccessful, they are unable to pay the costs of suit ; and, in truth, the attempt is made with some prospect of gain, and no apprehension of loss in any event. "While, there- fore, I have been prompt to give a reasonable compensation for real wrongs, I have endeavored to check and discourage frivolous suits and vexatious litigation. Nobody will believe that the law which governs the deport- ment of men on shore to each other, can be applied to their habits and conduct on board of a ship. That which would be an assault, or an assault and battery, in a drawing-room, or in the streets of our city, and punishable by indictment or a civil suit, cannot be so considered among the rough inmates of a ship at sea. The code of manners is entirely different, as is the situation and character of the men. If striking at a man, without touching him, or pointing an offensive weapon to him, or holding up the fist, were to be considered as good ground for a suit ; if any rude or angry touching of the person, however lightly, is to be adjudged an assault and battery, for which damages may be recovered ; no vessel could arrive without a plentiful crop of actions, equally injurious to the plaintiff and defendant. This cannot be the law of the sea practically, 288 AUGUST SESSIONS, 1839. Forbes v. Parsons. ■whatever it may be in theory. In questions of this kind, be- tween the officers and the seamen of a ship, my desire has been to maintain a safe and proper discipline, preserving, on the one hand, a necessary and salutary obedience on the part of the seamen, and on the other, protecting him from all cruelty and undue violence, and from any severity not required for the sup- J)ort of the proper authority of the officer, giving a liberal con- sideration to the exigencies of the occasion. The officer may not, under the pretence of discipline, take advantage of some trifling fault to indulge ferocious passions, or some particular ill "will against the offender. Generally speaking, I should consider a seaman entitled to recover damages for an assault and battery from the officer of a ship, first, -where personal violence was inflicted upon him, although not excessively, wantonly and without any provoca- tion or cause ; second, where provocation and cause were given by the seaman, but the punishment was cruel and excessive, having no reasonable proportion to the provocation or fault for which it was inflicted ; third, I have always looked with a se- vere eye to the instrument used in punishing. It should be that which is the ordinary instrument for such occasions. To employ a deadly, or dangerous weapon ; to strike a man down with a handspike, or bludgeon ; to cut him with a sword, or stamp upon him, when prostrated, endangering his health and life, I have always deemed unlawful modes of punishment, although the injury received from them may not have been very severe. But if a seaman has given cause for punishment, by disobedience, or neglect of duty, by insolence and insubor- dination to the officers and their lawful authority, and the officer, in a moment of irritation, should strike him with his fist, although I do not approve of such blows ; a rope being the proper instrument of punishment ; or shall correct him with a rope, I cannot institute a very nice and scrupulous compari- son between the offence of the sailor and the number or vio- lence of the blows inflicted upon him for it. It will be incum- bent on him to show that they were cruel and excessive. AUGUST SESSIONS, 1839. 289 Forbes v. Parsons. Having these principles in view we will examine the circum- stances of the case now to be decided. First, as to the pro- vocation or cause given by the libellant for punishment, I have already stated it. In his libel, as a material part of his case, he has averred that " during the whole time he was on board of the said ship he did well and truly perform his duty." We have seen how far he has been from sustaining this averment. The question is, whether his delinquency was a fit subject of punishment ; and if so, whether the punishment inflicted was excessive, and so disproportionate to the ofience, so marked with cruelty and oppression, as to entitle him to damages for the wrong. Thinking that his offence justified punishment, I shall confine my inquiry to the question of excess. The first assault and battery complained of in the libel, is that which is spoken of by the witnesses as having happened two or three days after the ship got to sea. She sailed on the seventh of August, and the libel lays the assault on the tenth. None of the witnesses (indeed but one of them testifies to this trans- action) give such an exaggerated account of it as is presented in the libel. Was the wrong proved such an one as supports the claim for damages ? Joseph Torente, the first witness examined, knew nothing of this beating. He began his testimony by saying he knew of libellant being flogged once, which was when they had been twenty days out. The second charge laid in the libel is for an assault and battery on the twenty-ninth of August, which in point of time corresponds very nearly with that mentioned by Torente, but they difi'er materially in their circumstances. The libel asserts that the assault was made with a table knife, with which the respondent struck the libellant a violent blow across his mouth, cutting his lips ; that the respondent seized him by the throat, and struck him violently with a frying-pan and kicked him. The statement given by the witness is very different. The affair of the knife and frying-pan was spoken of by other witnesses, and we shall see what they say about it, hereafter. Torente's account of the flogging when they 19 290 AUGUST SESSIONS, 1839. Fortes v. Parsons. were twenty days out, is that the libellant was flogged with a large piece of rope. He saw nothing of the knife, nor of the frying-pan, nor of seizing him by the throat. He says that it was about a pan which the captain said was not clean. When the captain had given some blows, the cook asked the crew if they would stand by and see him abused. This is all he said of that transaction. He afterwards said that he recollected another beating, with a piece of rope five or six feet long, and an inch and a half in diameter ; that the captain gave the libellant five or six blows, not very heavy, the captain saying he would not hurt him. It was about burning some coifee. He then added that he saw the libellant's mouth cut after both these beatings ; that his lips were bleeding, but not much ; that he does not know whether they were cut or not. After these beatings libellant went immediately to his duty. This witness testifies to the general humane conduct of the captain to the crew ; indeed, with the exception of the cook, none com- plained of the treatment, or had any reason to do so. The next witness was George Owens. The first beating he saw was after they had been twenty days out. Of course he gives no support to the first assault charged in the libel. He says that the first beating was about a frying-pan that was dirty. The captain gave him about six lashes, and the rope gave out, that is, it unravelled, and he then tied a knot in it, and struck the libellant violently. The witness was more than half the ship distant from them. He does not mention, as Torente did, that the cook called out to the crew, but, like Torente, he knew nothing of the blows with, the knife, the seizing by the throat, &c., as set forth in the libel to have happened at this time. As to the knife, he testifies that, after the affair just related, which took place when they were twenty days out, the pan had some rust in it; that the captain took a knife and began to scrape it, and then daubed it in the cook's face. It cut his face, and the blood came out. This, I presume is the explanation of the assault and striking made with a knife. This witness saw the captain pull the cook out of the galley AUGUST SESSIONS, 1839. 291 Forbes v. Parsons. several times, and strike him on the head with his fist. This witness somewhat impaired my confidence in his testimony by saying, in conclusion, that the captain behaved middling to the crew, no great things, but that he would not sail with him again for five hundred dollars a month. John Collins was a steerage passenger in the ship. He saw the captain beat the libellant with a rope's end. It was about the cooking. He says the cook showed him his body ; it was very bad, it looked black. At another time he saw the cook come up from the cabin with his mouth cut and bleeding ; but he did not know how it happened, or who did it. George Appel saw the captain give the cook about fourteen blows ; they were not heavy, but middling ; saw him strike him with a frying-pan, and kick him on the cheek. He struck him with the pan because it was not clean. George Wilson, the cabin boy, about ten years of age, but smart and intelligent, is the only witness who speaks of the beating laid in the libel to have been about the tenth of August ; but he gives no details such as are set forth in the libel. He says it was about three days after they were at sea ; that it was about the pans being dirty ; that the captain got some dirt out of a pan, with a knife, and wiped it across the cook's face. The boy saw the captain strike one blow on the cook's body with his fist ; that he struck him for dirtiness ; that the pans, cups, and towels, were dirty; and that complaints were made that the victuals were not well cooked. Here the libellant closed his evidence, and it must be seen that he has not made out a strong case by his proof, and that it falls far short of the allegations of his libel. No serious injury appears ever to have been done to him, at any time ; he went to his work, as usual, immediately after every beating, and none of the witnesses speak of the beatings as being severe, much less disabling. The instrument used was a rope, about the size of which there is a difference between the witnesses of the libellant, and those produced on the part of the respondent. The wiping a dirty knife across his face, and the blow with a 292 AUGUST SESSIONS, 1839. Forbes v. Parsons. dirty frying-pan, can not be considered as very aggravated or cruel assaults, nor were they followed by any serious conse- quences. If the articles in question were as dirty as they have been represented, we can hardly be surprised that they should suddenly have been used as the means of punishment. The two officers of the ship, the first and second mates, were produced on behalf of the respondent ; none others were left for him, as the libellant had called all the crew that remained in this city. Elihu Arnold testified, as some of the other witnesses had done, that when the libellant came on board toiget employment, he said he was a good cook and steward : that he made good pies, &c. ; that fault was found with him the first day ; the victuals were not half cooked ; the utensils were very dirty ; that he was often spoken to, but did not amend ; nothing was done better. This witness testified to the good accommodations of the galley, and the sufiiciency of cooking utensils. He says that breakfast, which ought to have been ready at eight o'clock, was sometimes as late as ten o'clock. That the captain spoke to him in a mild manner, but the libellant would not give a direct answer, nor any cause for his conduct. He saw the captain scrape dirt out of one of the pans. He described the rope used by the captain as much smaller than was said by the libellant's witnesses ; that the captain gave him four blows when he called out to the crew to assist him, upon which account the captain gave him four or five blows more, after which the libellant went immediately to his duty. Both the witness and the captain had to cook for the cabin and the peo- ple. The galley was kept filthy and dirty. John Clifford, the second mate, gave substantially the same testimony with Elihu Arnold. Two respectable masters of vessels testified that they had examined the galley and cooking utensils of the Suffolk; that they were as good, and, in some respects, better, than is usual for vessels of her size. To apply the general principles I have stated to this case : AUGUST SESSIONS, 1839. 293 Fortes V. Parsons. 1. The chastisement inflicted on the libellant was, certainly, not without fault and provocation, on his part. He had un- dertaken duties, important to the health and comfort of all the persons on board of the ship, and he either could not or would not perform them. His cooking was so bad as not only to call for repeated remonstrances from the cabin, but to cause a formal complaint, to the captain, from the crew, who, we may presume, were not very dainty in their diet. The pro- visions were good and wholesome, but spoiled by the great want of skill or the carelessness in preparing them for the table. No one will say that it was not a more than ordinary provocation to be obliged to eat such meals for weeks together ; nor that some efforts might not reasonably have been made to correct the evil. The cause of complaint was greatly aggra- vated by the libellant's habitual dirtiness, which he might have corrected by care and labor. 2. As to the instruments used in correcting him. The beatings were inflicted with a rope, the usual and proper in- strument. There is a difference in the testimony about the size of the rope ; but a rope was used. No blow was struck with a knife ; if his lip was cut, it was but slightly, and was done by drawing the knife across his face, or mouth, to wipe the dirt from it which had been scraped from the pan. 3. There was no extraordinary severity in the chastisements inflicted upon him. There was no tying up, or stripping, nor anything to show a deliberate design to punish the libellant painfully or severely. The blows were given on the instant of the provocation ; they were not numerous or heavily laid on, as the libellant's witnesses testify. He was never disabled, but went immediately to his work. I cannot say that this is a case for damages. The libellant stands with the fault upon him, the origin and cause of all his maltreatment, of having hired himself for services he could not perform, and thereby imposed himself upon the captain and crew, who were daily suffering the penalty of his deception. It is worse for him if he was able to do the duties of his station, 294 AUGUST SESSIONS, 1839. Forbes v. Parsons. and, from carelessiiess, laziness, or obstinacy, would not. I should not omit to mention, that it was discovered, after they got to sea, that the cook was blind of one eye, and saw imper- fectly with the other. These defects, certainly, in a measure disqualified him for the performance of his duties in a proper manner, at least so far as to require from him an increased attention and labor, which he would not bestow. When he was told of these defects, and his concealment of them, for they did not appear on a cursory inspection, he replied that his blindness was a misfortune, not a fault ; he was answered, that is certainly so, but it was a fault to pass yourself upon us, as an able and competent cook, if, from any cause, you were unable to do the duties of one. He replied, that he must get a living somehow. He said he had come out of the hospital a short time before he came on board. Upon this part of the case, if there were no other cause of action in the libel, it would be my duty simply to dismiss it, with or without costs, as I might think the circumstances re- quired. The libel, however claims a balance of wages due to the libellant, and wages are due to him, but at a rate not quite half of that he claims in his libel. In support of his demand at the rate of five pounds a month, he refers to the shipping articles, and prays that they may be produced. They have been produced, and it there appears, under his own signature, well and distinctly made, that his contract was for two pounds a month, which is but little below the wages of the rest of the crew. No attempt has been made to prove that any fraud or imposition was practised upon him, or that he did not fully understand the contract he had made. The account will stand thus : Wages, from 6th August to 22d September . . . £3 Less amount received, .... 200 Balance due £10 It is ordered, adjudged and decreed, that as to those counts AUGUST SESSIONS, 1839. 295 Forbes v. Parsons. or articles in the libel -which charge the respondent with sun- dry trespasses, and assaults and batteries, upon the person of the libellant, judgment be entered for the respondent; and that, as to the counts or articles -which claim and demand -wages to be due to the libellant, judgment be entered for him for the sum of $4 84, -with costs of suit. But no costs or charges are allo-wed for the attendance of the -witnesses of the libellant, as their evidence related entirely to the counts or articles for the assaults and batteries, upon -which the decree is in favor of the respondent. DISTRICT COUET OF THE UNITED STATES. liutttn iiatritt nf f tnnsijlnaiiiii. NOVEMBER SESSIONS, 1839. LEVI ELDREGE, A CITIZEU OF PENNSYLVANIA, V. PABLO CHACON, CONSUL GENBBAL FBOM SPAIN. 1. If a notary public states, in his protest, a demand on the drawer of a note, non payment, and that notice was given to the endorser, it is suffi- cient primS/acie evidence of the notice, and that it was given in a due and regular manner: 2. It is well settled that, if the holder of a note releases the drawer, or gives him time for payment, with the approbation and consent of the endorser, the liability of the latter is not discharged. 3. Where it appears, from the circumstances of a case, to have been the in- tention of the parties releasing the drawer of a note, to preserve the lia- bility of the endorser, equal effect will be given to such intention as to a positive and express declaration. 4. It seems that, unless the contrary appears, the assent of an endorser to the release of the maker of a note, by the holder, will, of itself, prevent such release from operating as a discharge of the endorser. This was an action against the defendant as the endorser of a promissory note, drawn by one Isidoro d'Angulo, dated on the 5th August, 1837, payable to the defendant at sixty days after date, for $874 59. A jury was sworn on the 18th February, 1839. The whole amount claimed was $944 52. The note was properly proved, and the protest was produced, drawn in the usual form, by a notary duly commissioned. The counsel for the defendant being then engaged in another Court, and the case turning on questions of law, it was agreed by the plaintiff's counsel that a verdict should be taken for the NOVEMBER SESSIONS, 1839. 297 Eldrege v. Chacon. plaintiff, and that the defendant should have the same benefit of the points of law on a motion for a new trial, as if they were then made to the Court. A new trial was afterwards ordered, for the purpose of introducing evidence that had been omitted at the former trial. On the 20th November, 1839, another jury was sworn, when, in addition to the former evidence, the plaintiff produced a general assignment made by Isidore d'Angulo of all his estate, for the benefit of his creditors ; the assignment was dated on the 18th September, 1837, and had a schedule of debts, assets, &c., annexed to it. There was also given in evidence an agree- ment, dated on the 21st September, 1837, signed by the plaintiff and defendant, and two other creditors of d'Angulo, and the purport of which was that these creditors, with a view to enable d'Angulo to pay them the amount of their debts in instalments, out of the means and profits of his establishment (which was a public hotel), from time to time as the same came in, acceded to the terms of the general assignment, and further agreed that d'Angulo should continue, under the direc- tion and superintendence of the general assignees, to carry on his business in the house, possessing and using the furniture of the hotel ; the assignees and d'Angulo agreeing that a propor- tionate payment or dividend should'be made, out of the receipts of the hotel, to the creditors, from time to time, and as fre- quently as the receipts would warrant. The general assign- ment stated the indebtedness of d'Angulo to divers persons, and that he was desirous of applying his estate and effects to the payment of his debts. He then assigned all his estate, real and personal, goods, &c., to the assignees named, to and for the uses and purposes thereinafter mentioned. First, to pay and fully discharge to Pablo Chacon the sum of $5,258, being the amount in which he was indebted to the said Pablo Chacon for money lent, and for money for which the said Pablo was responsible for him, as appeared by the schedule annexed. In this sum of $5,258, was included the note on which this suit was brought. After this preference, followed trusts to 298 NOVEMBER SESSIONS, 1839. Eldrege v. Chacon. ^ pay the other creditors, and to repay the balance, if any there was, in the usual form. On this evidence a verdict was taken for the defendant on an agreement, signed by the counsel respectively, and filed with the Cleric of the Court, that the verdict should be subject to the opinion of the Court on all the facts of the case, as they appeared on the Judge's notes ; and, if the opinion of the Court should be in favor of the plaintiff, judgment should be entered for him, non obstante veredicto, for the amount of the promis- sory note declared upon, with interest and costs. On the 1st December, 1839, the case was argued before Judge HoPKiNSON, under the agreement, by Oakford, for the plaintiff, and Ingraham, for the defendant. Oakford, for plaintiff. There is nothing in the agreement of 21st Sept., 1837, which can be construed into giving time to the maker of the note. Time is given to the assignees, but the maker is only allowed to retain possession of his stock in trade. There is no considera- tion for the agreement ; but, to validate it, there should have been a valuable consideration. There was not even an agreement not to sue d'Angulo, though, in fact, he was not sued. Chitty on Bills, 408 ; M'Lenore v. Powell, 12 Wheat, 554 ; People v. Jansen, 7 Johns. 332 ; Hunt v. The United States, 1 Gall. 32 ; Planters' Bank v. Sellman, 2 Gill. & J. 234. The in- dulgence, whatever it was, was gi,ven with the assent and con- currence of Chacon, which prevents his liability from being discharged. Clark v. Devlin, 8 Bos. & Pull. 363 ; Chitty on Bills, 415; Bruen v. Marquand, 17 Johns. 58; Gloucester Bank v. Worcester, 10 Pkg. 528, 532. The protest sets forth a demand on the drawer, non-payment, and notice to the endorser ; it is according to the usual form, and is sufficient. Hastings v. Barrington, 4 Whart. 486. Ingraham, for defendant. The note was due on the 7th October, 1837, that is, after NOVEMBER SESSIONS, 1839. 299 Eldrege v. Chacon. the agreement was made, and the liability of the endorser was not then fixed. Chacon was the preferred creditor, and would have taken the whole fund, but for the agreement made be- tween him and the other creditors, by which he agreed to share the fund with them. No suit could have been brought against d'Angulo after this agreement. Okie v. Spencer, 2 Whart. 253 ; Lewis v. Jones, 4 Barnw. & Cressw. 506, 615. It was clearly an agreement for time ; the payments were to be " from time to time." The pledge of future earnings was a sufficient consideration. There should be proof of notice to the en- dorser, of non-payment by the drawer. The endorser here had no such notice ; the only proof offered of it was the protest : this is not evidence of anything but the facts which appear on its face. Act (of Assembly, Penna.) of 2d January, 1815. (6 Smith's Laws, 238 ; Dunl. L. Edit. 1853, p. 302.) This Act says that the protest shall be evidence of the facts therein stated; but this protest states no fact which shows notice to the endorser. The notary states that he duly gave notice to the endorser : this is only his opinion ; he does not say how he gave notice, but assumes that it was such as the law requires. Hastings v. Barrington, 4 Whart. 486. On the 12th December, 1839, Judge Hopkinson, after stat- ing the facts of the case as already reported, delivered the following opinion. The question to be decided is whether, on the evidence, the defendant, the endorser of the note, is or is not discharged from his responsibility for the payment thereof. A preliminary objection has been taken to the protest, as not sufficiently showing that notice was given, to the endorser, of the dishonor of the note by the maker. The notary states, in his protest, a demand on the drawer, the non-payment, and that notice was given to the endorser. I think this sufficient primd facie evidence of the notice, and that it was given in a due and regular manner ; and no evidence has been given to impeach it. Dickins v. Beal, 10 Pet. 580; Nicholls v. Webb, 8 Wheat. 326. 300 NOVEMBER SESSIONS, 1839. Eldrege v. Chacon. The real question between the parties is, whether, on the evidence of the two instruments of writing produced, on the trial, to wit, the general assignment, made by Isidoro d'Angulo, on the 18th September, 1837, and the subsequent agreement or arrangement made, on the 21st of the same month, between the assignees and certain of the creditors of d'Angulo, includ- ing the plaintiff and defendant, the defendant is discharged from his responsibility for the payment of the note in question. The second instrument is an acceptance by the creditors who signed it, of the terms and provisions of the first. It then proceeds to add to this acceptance an agreement between the said creditors, the assignees, and the debtor; or rather, a decla- ration by the said creditors, by which they allow the debtor to retain the furniture and carry on his business in the manner above mentioned ; but makes no change in the rights of the creditors by and under the general assignment ; nor does it in any manner afiect the arrangement, thereby made, for the payment of the debts of the insolvent, and the appropriation, for that purpose, of his estate. It is no more than a permis- sion or authority to the assignees to allow the insolvent to retain the goods, at the risk of the creditors who assented to it. No principle of the law, on the subject of notes, is better settled than that, if the holder releases the maker, or gives time for payment, after the note has fallen due, he thereby discharges the endorser from his responsibility ; but it is equally well settled, by the same principle of equity, that, if this release or indulgence is given with the approbation or consent of the endorser, it does not discharge him. He cannot claim a con- structive release from an act to which he was himself a party. Another case is where the holder of the note did assent to the release or indulgence, but with a reservation, express or implied, of his rights against the endorser. Was there such a reserva- tion in the case before us? The holder of the note, the present plaintiff, and the endorser, the defendant, joined in the same act of forbearance to the maker. If this had been done by the NOVEMBER SESSIONS, 1839. 301 Eldrege v. Chacon. holder, without the assent of the endorser, doubtless the latter would have been discharged. On the other hand, the assent of the endorser would continue his responsibility, if it had been a simple explicit declaration of such assent. We are then to inquire whether, from the acts of these parties, the law will say that such assent has been given. The defendant alleges that the intention and effect of the whole arrangement was that all the creditors who signed the instrument of the 21st Septem- ber, were to look only to the insolvent and his earnings for the payment of their debts ; to come into the common fate, to take the same chance, and to have no other security. The plaintiff, on the other hand, contends that he was willing to accede to this kindness to the insolvent, to give his permission to the assignees to allow him to go on with his business, but not to surrender another and a better security he had for his debt. These contradictory allegations bring the case to the question, what was the intention of the parties ? What con- struction will the law put upon their acts, in relation to the continuance of the responsibility of the endorser of the note, or his discharge from it. Various cases have been cited on this question ; but two of them are so very similar in their circumstances to that before us, and their principles are so satisfactory to me, that I shall confine myself to them. The first is the case of Bruen v. Marquand, 17 Johns. 58. It was a suit by the holder of a note, against the endorser. Both the endorser and the holder had signed a release of the maker. The endorser claimed to be discharged on the ground that the holder had released the maker. The plaintiff contended that, as the defendant, as well as himself, was a party to the release, and had assented to it, their rights, as between themselves, could not be affected by it, and that it was apparent, from the release itself, that it was the understanding of the parties that this note was to be pro- vided for by the endorser, the defendant. In delivering the opinion of the Court, Van Ness, Justice, said, the question arises " whether or not the release and discharge of the maker 302 NOVEMBER SESSIONS, 1839. Eldrcge v. Chacon. is, in this case, a release of the defendant, the endorser ? The general rule is not disputed ; hut it is argued that this case is not within it." The Judge says that the reason for discharging the endorser does not apply, which is, that the remedy of the endorser against the maker is materially affected, or taken away ; and this reason does not apply because the endorser, who is a party to the assignment, released the maker from liability to him. He has, therefore, released all his remedy against the maker in case he should be compelled to pay the note. The Judge further remarks, " This is a question of intent on the whole instrument. There is no express release of the defendant (the endorser), and the release of the maker is a discharge of the endorser, by construction only; and if the intention of the parties was to preserve the liability of the endorser, it was competent for them to do so." After stating the circumstances of the case, the Judge concludes that it ap- pears to him there was a full understanding that the liability of the endorser should remain unimpeached. Referring to the inventory which accompanied the assignment, he says, in still stronger language, that, in his opinion, it is a plain and une- quivocal recognition, by the defendant, that his liability as endorser, was not to be extinguished by the discharge of the maker. Again : the intent of the parties clearly appears to have been, that both the holder of the note and the endorser should set the maker free, but that the remedy against the endorser should remain ; for the reason that, the debt was put in the first class, the maker intending to secure the endorser. The reason, arising from this preference given to the debt, is more fully enlarged upon by the learned Judge. As between the holder of the note and the maker, there was no reason for this preference ; but as between the maker and the endorser it was otherwise. The Judge was quite satisfied that this was the true construction of the assignment, and, on this ground, the defen- dant was held to be liable, as endorser. The case before us is so much stronger than that cited, as the money due on this note is not only preferred to all other NOVEMBEE SESSIONS, 1839. 303 Eldrege v. Chacon. debts, but it is so preferred as a debt due to the defendant, as a claim he has upon the estate. Now, if it were intended that he should be discharged from all liability to pay that note, why was it included in the list of debts for which he was to have a preference ? How can we suppose the holder intended to exchange his claim upon a good responsible endorser for the uncertain resort to an insolvent's estate ? The case of Parsons v. The Gloucester Bank, 10 Pkg. 533, is decided on the same principle, although the intention of con- tinuing the liability of the endorser is more explicit, being ■ expressly declared, and not collected from the circumstances of the case and the provisions of the assignment. Whenever, however, it is satisfactorily ascertained by circumstances, the eifect is the same as if it had been expressly declared. In that case, an insolvent debtor made an assignment of his pro- perty, for the payment of his debts. It was assented to and executed by the bolder and endorser of one of his notes. It contained a release of the debtor, but with a declaration, or proviso, that it should not affect any collateral security taken by a creditor. The instrument of release, with this proviso or reservation, being executed by the endorser, of course had his assent ; he agreed that the maker of the note should be re- leased, and he also agreed that this release should not affect any collateral security held by any creditor of the maker of the note. The endorser had paid the money due on the note to the holder, and brought his suit to recover it back, as having been paid by mistake ; but the Court thought he had altogether failed to make out his ground of action. In the case of The Gloucester Bank v. Worcester, 10 Pkg. 528, the maker of a note which was endorsed made a general assignment in trust to pay his debts, which was executed by the holder and endorser of the note, and contained a general release of all claims against the assignor. The endorser was sued, and claimed to be discharged on the general ground of the release of the maker. The opinion of the Court is thus given : " We think that it is very clear, from the assignment 304 NOVEMBER SESSIONS, 1839. Eldrege v. Chacon. or indenture itself, independently of the parol evidence, that the plaintiffs did not intend to discharge the defendant from his liability as endorser; and that the discharge, contained therein, of the maker, by the plaintiffs, 'was by the approbation of the defendant." The parties provided always " that nothing therein contained should be construed to impair or affect any lien or pledge theretofore created or obtained as security for a debt or claim due from (the maker) the party of the first part." The Court thought that an endorsement was well described by the words "lien or pledge;" and say that the defendant, by becoming a party, agreed to the arrangement that the prin- cipal debtor should be discharged, in consideration of the property assigned by him to be distributed, and that the pledge or undertaking which he had given by his endorsement should continue. It will be observed, if it could be doubted, that the assignment by the debtor of his property to be dis- tributed to his creditors is considered to be a sufficient con- sideration for the release, and the agreements made by the creditors. The principles recognised in these cases by the Courts of New York and Massachusetts, in which I concur, reduce the case now to be decided to the question, whether it appears, by deeds or instruments executed or assented to by the plaintiff and defendant, that it was or was not the intention or under- standing of the parties to continue the liability of the endorser to the holder of the note, notwithstanding the release of the maker ? In the cases cited, affirmative proof of this intention ■was drawn from the instruments themselves; that is, the Courts were satisfied that such was the intention, from the provisions and agreements of the instruments of assignment and release. Without, however, looking for direct or circum- stantial proof of the intention of the parties to continue the liability of the endorser, in any particular case, it seems to me that, unless the contrary appears, the assent of the endorser to the release of the maker of a note, by the holder, will of itself prevent such release from operating as a discharge of the NOVEMBEK SESSIONS, 1839. 305 Eldrege v. Chacon. endorser. It is a release without his assent that brings this consequence upon the holder ; and, therefore, unless it ap- pears, by direct proof or a fair construction of the acts of the parties, that the liability of the endorser was to be discharged, notwithstanding his assent to the release of the maker, his liability will continue. When the endorser assents to the release, and has himself released the maker, the reason for discharging him, as given in Bruen v. Marquand, altogether fails ; that is, that his remedy against the maker is affected or taken away by the release of the holder, for he (the endorser) has himself, by his own act, abandoned or given it away. We have, then, to inquire, from the circumstances of the transactions between Isidore d'Angulo and his creditors, and the construction of the deeds to which they were parties, what was the intention in regard to the endorsed notes, or, more particularly, the note which is the subject of this suit ? Was it intended that the holder of this note should discharge the endorser, and look only to the estate of the insolvent for the satisfaction of his debt ? At first blush, it would seem to be strange that he should give up a good and substantial security, for the chance of getting his money from the earnings of d'Angulo in the hotel and business in which he had already failed. What intention does the law infer from these deeds or instru- ments ? — that is, the assignment of the 18th September, and the instrument of the 21st of the same month, by which the holder and endorser of this note, with some other creditors, agree that the assignees shall permit the said d'Angulo to continue in possession of his furniture, &c., he agreeing to make payments to them, in proportion to their debts, from time to time, as his receipts should warrant. It is to be observed that no release is stipulated for in the assignment, nor given by the subsequent instrument ; but time is given to d'Angulo to pay this note by dividends from the profits of his business, and this indulgence is given both by the holder and 20 306 NOVEMBEK SESSIONS, 1839. Eldrege v. Chacon. endorser of the note, and, of course, is done with the approba- tion and consent of both. Without recurring to the principles already recognised to make an application of them to the circumstances of this case, it will make the intention of the parties, if possible, more clear, to remember that this note is included in the list of debts due to the defendant; that, of course, he was entitled to receive the dividends or payments to be made on it, from the earnings and business of d'Angulo ; and that the plaintiff, Eldrege, had no claim whatever to any such dividend or pay- ' ment which might be made for, or on account of, this note ; nor is Eldrege ever named as a creditor, so fully did it seem to be the understanding that he was to look to Pablo Chacon for his money. Again, the debts for which Pablo Chacon has a priority or preference over all the other creditors of d'Angulo are described as debts due to him for money lent to d'Angulo, or for which he (Chacon) had become responsible. In the list, this note is put down as one of the responsibilities of Chacon. I am of opinion that the assent of the endorser to this in- dulgence ■ to the maker, to this endeavor to afford him an opportunity to pay the debt, has the effect to continue his liability for the payment of the note, and to take from him the discharge which such an arrangement, without his consent, would have entitled him to. Let judgment be entered for the plaintiff, according to the agreement filed. NOVEMBEK SESSIONS, 1839. 307 United States v. Linn. — United States v. Hewes. THE UNITED STATES OF AMERICA T. JOHN H. LINN. Under the fiftli section of the Act of 13th July, 1832 (4 Story's Laws, 2323), a surety is liable on a bond given for duties under $200. This was a suit on a bond given by John C. Swain for duties under two hundred dollars, and on which the defendant had become surety. On the 12th December, 1839, the case came on for trial, before Judge Hopkinson ; and a verdict was taken for the plaintiffs, for the full amount demanded, subject to the opinion of the Court on the question, whether the surety was liable, the bond having been given for duties under two hundred dol- lars, which the Act of 13th July, 1832, § 5 (4 Story's Laws, 2323), directed to be paid in cash. On the 1st September, 1843, judgment was given for the plaintiffs on the verdict. THE UNITED STATES OF AMERICA V. SAMUEL F. HEWES. 1. The soTereign power is not bound by general words in a statute, but only when included expressly, or by necessary implication. 2. The United States and their debtors are not included in the provisions of the Act of 28th February, 1839 (5 Story's Laws, 2760). The defendant in this case was in execution on a judgment rendered for the plaintiffs, on a debt due before the 5th July, 308 NOVEMBER SESSIONS, 1839. United States v. Hewes. 1838 ; he was discharged, by the Court of ConMnon Pleas of Philadelphia County, as an insolvent, under the insolvent law of the State of Pennsylvania, on the 5th July, 1838 ; and petitioned this Court that he might be liberated from impri- sonment, under the provisions of the Act of 28th February, 1839. On the 22d January, 1840, the case came before Judge HoPKiNSON, for a hearing, and was argued by Read, for the plaintiffs, and Gmnnell, for the defendant. GriNnell, for the defendant. The United States are bound by the discharge given by the Court of Common Pleas ; all the requirements of the law have been complied with, and the petitioner is exonerated from all liability. Act of Assembly of Pennsylvania, " relating to in- solvent debtors," of 16th June, 1836, Pamph. L., 729, Dunl. L. 717, §§ X. xL, Dunl. L. 719 ; The Commonwealth v. Cornman, 4 Serg. & Raw. 2 ; Act of Congress of 28th Feb- ruary, 1839 (5 Story's Laws, 2760). The words of the Act of 1839 are general, and without restriction or exception ; the former Acts had express exception of debts due the United States. Act of 17th January, 1800 (1 Story's Laws, 715) ; Act of 3d March, 1817 (3 Story's Laws, 1652) ; Act of 2d March, 1831 (4 Story's Laws, 2236). And see The People V. Rossiter, 4 Cow. 143 ; U. S. v. Wilson, 8 Wheat. 253 ; U. S. v. Hoar, 2 Mason, 311, 314 ; U. S. v. Fisher, 2 Cranch, 358, 389. Read, District Attorney, for plaintiffs. This very question has arisen in the Southern District of New York, U. S. v. Wood, reported in the New York Herald of 13th January, 1840. The United States are excepted from all general statutes, unless either expressly named therein, or included by necessary implication. Dwarris on Statutes, 668 ; Chitty, Jr., on Prescription of the Crown, 382; 1 Kent's Com. NOVEMBER SESSIONS, 1839. 309 United States v. Hewes. 460, 461 (3d "edition) ; U. S. v. Hoar, 2 Mason, 314, 315 ; U. S. V. Greene, 4 Mason, 427 ; Commonwealth v. Baldwin, 1 Watts, 54. The State insolvent laws require notice to be given to the creditors ; but when the Government are credi- tors, who is to be notified ? The President ? the Secretary of the Treasury ? the District Attorney ? the Comptroller ? the Marshal? None have authority to receive such notice. If the plaintiifs are included in the Act of 1839, they must come under all the restrictions of the State law, and be treated as common creditors, having no priority or preference ; and they must have an attorney in every County Court in the Union, in order to guard their interests. The provisions of the Act of 3d March, 1797 (1 Story's Laws, 464), will be wholly nuga- tory if the Act of 1839 has .the extent contended for. Grinnbll, in conclusion. The decision of the point has been made in New York. It has been argued that, if the United States are bound by the Act of 1839, they will lose their priority; there 'is nothing in the Pennsylvania Act of 1836, or in the decisions under it, to sanction this argument. The United States would still be pre- ferred creditors. On the 81st January,*, 1840, Judge Hopkinson delivered the following opinion in the case. A suit was brought by the United States, against the de- fendant, to the last November Sessions, and a judgment ren- dered against him. Upon this judgment a writ of capias ad satisfaciendum was issued, the defendant arrested, and com- mitted to prison. He has presented his petition, praying to be discharged from imprisonment, by virtue of an Act of Con- gress, passed on the 28th day of February, 1839 ; entitled " An Act to abolish imprisonment for debt in certain cases," by which it is enacted, " that no person shall be imprisoned for debt in any State on process issuing out of a Court of the United States, where, by the laws of such State, imprisonment 310 NOVEMBER SESSIONS, 1839. United States v. Hewes. for debt has been abolished ; and where, by the laws of a State, imprisonment for debt shall be allowed, under certain condi- tions and restrictions, th^ same conditions and restrictions shall be applicable to the process issuing out of the Court of the United States ; and the same proceedings shall be had therein, as are adopted in the Courts of such State." When this Act shall be "brought into practical operation, some difficulties will occur, which will probably require a more explicit declaration of the intention of the Legislature ; at present we have to do with but one. The defendant has ex- hibited a certificate, from the Court of Common Pleas for the City and County of Philadelphia, stating that he had presented his petition to that Court for relief, as an insolvent debtor ; that he had given notice to his creditors to appear and show cause, if any they had, why he should not receive the benefit of the provisions of the Acts of Assembly, for the relief of insolvent debtors : no cause being shown why the prayer of the petitioner should not be granted, he took the oath pre- scribed by law, made an assignment of all his estate, and was discharged ; " and it was thereupon ordered, by the said Court, that the said petitioner shall not, at any time thereafter, be liable to imprisonment, by reason of any judgment or decree, obtained for the payment of money only, or for any debt, damages, costs, sum, or sums of money, contracted, accrued, occasioned, owing, or becomings due, before the time of such assignment." The single question in this case is, whether a debtor of the United States, imprisoned by process issuing from a Court of the United States, or on a judgment rendered against him by that Court, can avail himself of the above dis- charge, to be liberated from imprisonment under the said judg- ment and .process. In other words, are the United States, and their rights and remedies against their debtors, affected by, and included in, the provisions of the Act of Congress of February, 1839 ? This is a question of grave importance to the government of the United States, as it may affect their securities for the public revenue, and their remedies against NOVEMBEK SESSIONS, 1839. 311 United States v. Hewes. their various, and numerous agents, 'who are receivers of the public money. It therefore demands a very careful examina- tion, and we should not declare, judicially, the intention of the Legislature, until we are well satisfied of it. The petitioner rests his right to a discharge on the broad and general terms 'of the Act of Congress, from which no ex- ception is made of a debt due to the United States, but it enacts that no person shall be imprisoned for debt in any State, on process issuing out of a Court of the United States, &c. The words it is said embrace a debtor of the United States, and a debt due to them. If they are to be taken in their large and literal meaning, it is certainly so. But it is contended on the part of the United States ; 1st, that, inasmuch as the United States are not expressly named and included in the Act 6f Congress, they are, by implication of law, excluded, and that their rights, interests, and remedies, cannot be affected by general words, unless a clear intention is apparent to in- clude them ; 2d, that, in this case, the intention of Congress that the United States should not be included in the provisions of this statute, may be collected from all the Acts of Congress, in relation to their debtors, and the whole policy of the govern- ment on that subject. The first is purely a question of law, to be decided by the adjudications of Courts of law, for, if it be the settled law, it must be presumed that Congress knew it to be so, and had it on their minds in passing the Act in ques- tion. It will then be my duty only to inquire what is the law, how has it been pronounced by competent tribunals, and to abide by what they have decided. Fortunately the ques- tion has more than once come under the consideration and judgment of our own Coui'ts,- as well of those of England. I will first refer to the English authorities. In a late elementary work, " Dwarris on the Construction of Statutes," which seems to have been compiled at least with the ordinary care of such works, it is said, " It is a rule that the King shall not be restrained of a liberty or right he had before, by the general words of an Act of Parliament, if the King is 312 NOVEMBEK SESSIONS, 1839. United States v. Hewes. not named in the act," 668. In The King v. Allen, 15 East, 333, the question arose on the Statute of 48 Geo. 3, c. 74, § 15, which gave to the Sessions an appeal from a conviction by Jus- tices of the Peace, and empowered the Sessions to hear and finally determine the facts and merits of the case in question between the parties, and enacted that no certiorari should be allowed to set aside the decision of the Sessions. It was held that this did not preclude the Crown from removing the convic- tion, and the order of the Sessions quashing the same by certio- i-ari. This is a very strong case. No words can be more direct and clear to take away the right of removal by certio- rari, from the determination of the Sessions, not only by declaring that it shall be final, but by the further express declaration, that no certiorari should be allowed; and it is the stronger as it gives a right of removal to one party which is denied to the other. In giving his opinion of this case, Grose, Justice, says : " The question was whether the act in- tended to take from the Crown the power of removing the con- viction by certiorari, for it is clear that, unless the act has plainly said so, the power of the Crown is not restrained. There are no words expressly taking it away. Then was it the clear intention of the Legislature so to do ? For I admit that, if there was such a clear intention, the Crown would be restrained. This, it is to be observed, is an excise law, passed for the better collection of the revenue, which is open to a different consideration in this respect from ordinary cases." The Judge argues that if in a case affecting the revenue, it was the intention of the Legislature to take the power from the Crown, it would have been done by express words ; Le Blanc and Bailey, Justices, concur in this opinion. A similar decision was given in The King v. The Inhabitants of Cumberland, 6 T. Rep. 194, in which the construction of the Statute of Anne, c. 18, § 5, on an indictment for not repairing a bridge, was in question. There are other cases decided on the same princi- ple ; indeed it has not, as far as I know, been questioned in the Courts of England. 1 Bl. Com. 261. The King is not bound by NOVEMBER SESSIONS, 1839. 313 United States v. Hewes. any Act of Parliament, unless he be named therein by special and particular words. The most general words that can be de- vised (" any person or persons, bodies politic or corporate, &c.), affect not him in the least, if they tend to restrain or diminish any of his rights or interests." It would be of mischievous consequence to the public. This may be called " prerogative," the prerogative of the Crown or King. In England it is attached to the King, because he is the Sovereign of the country; but it is so attached to the King as the sovereign power, wherever it niay reside, and in that sense we may speak of prerogative without any repugnance to the principles of our Constitution, or the spirit of our institutions. It is nothing more than giving certain necessary rights or privileges to the whole community, which are denied to individual citizens on principles of public policy and expediency or the " general welfare." Many preferences of this sort, granted to the government, are found in our statutes, and no one has thought of repudiating or branding them with any odium as "prerogatives." Without a further reference to English authority on this subject, I shall inquire how far the same principle of exemption of the government from the general words of a statute, has been adopted or recognised by Ameri- can Judges. I will begin with an elementary work, but whose author has held the highest judicial stations, and whose learning and accuracy of research are held in the best estimation by every Judge and lawyer of our country. In the 1st vol. of Kent's Commentaries on American Law, 460, 3d edition, it- is said, "It is likewise a general rule, in the interpretation of statutes limiting rights and interests, not to construe them to embrace the sovereign power or government, unless the same be expressly named therein, or intimated by necessary implica- tion." This is precisely the English rule, and no suggestion is made of a different rule here ; on the contrary, the learned commentator, in addition to his English authorities, cites the opinion of Judge Story, as delivered in 4 Mason, 427 (U. S. V. Greene), which is fully to the point. The case there decided was that the United States may sue in the District Court as 314 NOVEMBER SESSIONS, 1839. United States v. Hewes. endorsees of a promissory note, against the maker thereof, although the maker and payee are citizens of the same State, notwithstanding the restriction in the 11th ,sect. of the Judi- ciary Act, which the Judge says was not intended to apply to suits brought by the United States, or if so intended, was re- pealed by the Act of 1805, c. 253. Now the words of the Judiciary Act of 1789 are as general and comprehensive as possible, "No civil suit shall be brought," &c., "nor shall any District or Circuit Court have cognizance of any suit to recover the contents of a promissory note, or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such Court to recover the said contents, if no assignment had been made." There is no exception of the United States, or of a suit brought by them, as assignees ; yet they are not restrained by the general words of the Act, which exclude every other suitor from these Courts. And why did not these general words include the United States ? The reason is given in the opinion of the Court. The learned Judge who delivered the opinion admitted that if the terms of the law are to be understood without any limitation, they clearly extend to the case before him. After stating some reasons why it should not be presumed that the Act was in- tended to place this restriction on the United States, he says, " The fair construction of the terms, under such circumstances, is to restrain their generality ; to look at the primary and leading intention of the provisions, and to restrain the words to obvious cases. Effect may thus be given to the whole lan- guage, without breaking in upon a very important national policy." What did the Judge consider as the " obvious cases" intended to be provided for by that act ? Cases between indi- vidual citizens, and not where the United States was a party. Does not the same reason and observation apply to our case ? What was the national policy which he thought so important, and not to be broken in upon ? To give the United States the - use of their own Courts, and not to subject their rights and in- terests to State tribunals. And is not this policy found in the NOVEMBER SESSIONS, 1839. 315 United States v. Hewes. case before us ? Did Congress intend to submit the whole system and policy of the United States'for the collection and preservation of their revenue, for holding the responsibility of their agents, officers, and debtors in their own hands, to the various and ever-changing provisions and immunities of the in- solvent laws of twenty-six States ? That the rights and reme- dies of the United States should be one thing in Pennsylvania, another in New York, another in Maryland, and so on through the whole ? Is there anything like a system, like uniformity, or equal justice, in such a state of things ? Should we suppose, without a clear and express enactment, that Con- gress intended to introduce such confusion and uncertainty in the powers of the government over its officers and revenue ? In the case cited, the Judge puts the opinion of the Court on the safe and rational ground, that we are not bound to follow to the whole extent the meaning of the terms used in an Act of Congress ; that we may restrain their generality by the circum- stances of a particular case, and look to the primary and lead- ing intention of the provisions, and give it such effect as will not break in upon an important national policy. In another part of this opinion the Judge expressly recognises the rule I have stated for the construction of statutes. He says, " It is a general rule in the interpretation of legislative acts, not to construe them to embrace the sovereign power or government, unless expressly named, or included by necessary implication." He cites for this rule, with many other authorities, a case re- ported in 4 Mass. R. 522, 528, Stoughton v. Baker. It will be observed that Chancellor Kent, in his Commentaries, adopted the language of Judge Story. We have another case decided by the same Court, and reported in 2 Mason, 311, " The United States v. Hoar," in which it was determined that neither the general statute of limitations, nor that of Massa- chusetts as to executors and administrators, binds the United States in a suit in the Circuit Court. Judge Story, delivering the opinion of the Court, says, " It may be laid down as a safe proposition, that no statute of limitations has been held to ap- 316 NOVEMBEK SESSIONS, 1839. United States v. Hewea. ply to actions brought by the Crown, unless there has been an express provision including it. For it is said, that, -where a statute is general, and thereby any prerogative, right, title, or interest is divested or taken from the King, in such case the King shall not be bound unless the statute is made by express words to extend to him." After giving the reason of the rule which excepts the Crown from the operation of statutes of limitation, which, he says, will be found in the great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers, he adds, " and though this is sometimes called a prerogative right, it is in fact nothing more than a reservation or exception, intro- duced for the public benefit, and equally applicable to all go- vernments." He also refers to the case reported in 4 Mass. R. 528 (Stoughton v. Baker). Tiese have been the doctrines adopted and unreversed by a Circuit Court of the United States. The Supreme Court of New York has also recognised them. In 4 Cow. 143, " The People V. Rossiter," we have not to deal with the King and his prerogatives. The decision, as given in the syllabus of the case, is that " a discharge under the Act to abolish imprisonment for debt, does not extend to a debt due to the people of this State. 'EovySemhle, does any insolvent or bankrupt law, unless the people are named it it." The report is very short, and the decision of the question seems not to have been attended with any doubt or difiSculty. Judgment was obtained against an attorney of the Court, for clerk's fees due to the plaintiff, upon which he was imprisoned under a ca. sa. after he had obtained his discharge under the Act to abolish imprisonment for debt in certain cases.' This is precisely the title of the Act of Congress in question. The counsel of the prisoner moved for his discharge, on the broad and unqualified words of the Act, that " the debtor shall be exempt from imprisonment, for or by reason of any debt or debts due at the time of making the assignment." There was no exception, he said, of debts due to the people, and none should be implied. The Attorney- NOVEMBER SESSIONS, 1839. 317 United States v. Hewea. General replied, that general words did not bind the people, — they are not named ; and that the rule is the same as to them, ■which prevails in England as to the King. By the Court, " The motion must be denied. The people are not bound by an Act of this kind unless they are named in it. The rule is the same as in England. The King is not bound by a bank- rupt law, unless named ; and the people are the King for the purposes of this rule." Will it not be singular if the United States shall be bound by an insolvent law of New York, when the State herself is not so ; both depending on general words in a statute ? Can she claim the benefit of a rule of construc- tion against her debtors which is denied to the United States ? The reports of the Supreme Court of Pennsylvania furnish a decision asserting the same principles. In 1 Watts, 54 (Commonwealth v. Baldwin), it was decided, after a careful ex- amination, by the Court, of cases in the Courts of the United States, that the State is exempt from the operation of the Acts for the revival of judgments, to continue the lien on real estate. There is in those Acts no exception in favor of the Common- wealth, and the terms are broad enough to include all and any judgments. That the United States have not heretofore been affected or barred by a discharge of their debtor under a State insolvent law, was settled by the Supreme Court in the case of the United States v. Wilson, 8 Wheat. 253 ; and so the law now remains, unless it has been changed by the Act of Congress *bf February, 1839, now under consideration. The principles maintained in the cases I have referred to, have not been contradicted or impeached, by any authority cited at the bar, nor by any I have found in my investiga- tion. I shall leave them to rest on the opinions of learned Courts and Judges in our own country, as well as in England, and supported, also, as I think, by their own strength and good reason. Putting aside the rule of construction, which excepts the sovereign power from the operation of such laws, unless ex- 318 NOVEMBEE SESSIONS, 1839. United States v. Hewes. pressly named, as a rule binding in Courts of law, the same re- sult may be readied by the ordinary doctrine, which refers to the intention of the legislature for the interpretation of their Acts. The learned Judge, to whose opinions and reasoning I always refer with confidence, says (2 Mason, 314), "Inde- pendently of any doctrine founded on the notion of preroga- tive, the same construction of statutes of this sort ought to prevail, founded upon legislative intention. Where the go- vernment is not expressly, or b.y necessary implication, included, it ought to be clear, from the nature of the mischiefs to be re- dressed, or the language used, that the government itself was in contemplation of the legislature, before a Court of law would be authorized to put such a construction upon any statute. In general, Acts of the legislature are meant to regulate and direct the acts and rights of citizens ; and in most cases the reason- ing applicable to them applies with very different, and often contrary, force, to the government itself. It appears to me, therefore, to be a safe rule, founded on the principles of the common law, that the general words of a statute ought not to include the government, or affect its rights, unless that con- struction be dear and indisputable upon the text of the Act." There is another principle or rule in the construction of statutes, so well established by authority, and so entirely rea- sonable in itsSlf, that it may be assumed to be unquestionable. It is this, that not only one part of a statute may be properly called in, to help the construction of another part, but that it will be inferred or presumed, that a number of statutes, relat- ing to the same subject, were intended to be governed by one spirit and policy; to be consistent and harmonious in their several parts and provisions. Dwarris, 699. The same author adds as the consequence of this intendment, that " it is an established rule of law that all Acts, in pari materia, are to be taken together, as if they were one law, and they are directed to be compared, in the construction of statutes, because they are considered as framed upon one system, and having one object in view." This doctrine is affirmed by 4 T. Repts. 447-450 NOVEMBER SESSIONS, 1839. 319 United States v. Hewes. (Duck V. Addington) ; 5 T. Repts. 417 (Exp. Drydon) ; Doug. 30 (Ailesbury v. Pattison). In this last case Lord Mansfield says " all Acts in pari materia are to be taken together, as if they were one Act." In Burr. 1607 (Timmins v. Rowlinson), he says, " they are to be considered as one system." What have been the spirit and policy, the system adopted by the government of the United States, in relation to its debtors, running through all the Acts of Congress on that subject ? 1. That the rights, interests, and remedies of the United States, shall noi be impaired, or affected, by the insolvent laws of any State; that they have never allowed the Courts of any State to interfere between them and their debtors, or to prescribe any terms, conditions, or restrictions, upon their rights and remedies, for recovering or securing their debts. 2. That they have never allowed even their own Courts, constituted by their own authority, to discharge one of their debtors from imprisonment under a judgment and execution, at their suit. The general Bankrupt Act, and the law of Con- gress for the relief of insolvent debtors, gave no such pow;er to the Commissioners in the one case, and the Courts in the other. 3. That for all such questions, for all such indulgences, a tribunal was created, which was the government itself; and this power and discretion was lodged with the President, in certain cases, and with the Secretary of the Treasury, in cer- tain other cases. To these high and responsible officers the whole subject was committed ; the examination of the circum- stances of each case was imposed upon them, and the decision upon it vested in them, upon such terms and conditions as they should think proper to exact. 1 Story's Laws, 750, § 62, the Bankrupt Act ; 1 Story, 715, Act for the relief of persons im- prisoned for debt ; 3 Story's Laws, 1652, Act of March, 1817, application to be made to the President ; 1 Story's Laws, 506, Act of June 6, 1798, application to be made to the Secretary of the Treasury ; 4 Story's Laws, 2236, appointing Commis- 320 NOVEMBER SESSIONS, 1839. United States v. Hewes. sioners to report to the Secretary ; 3 Story's Laws, 1997, § 38 of the Post-Office Act. It is true that in the Bankrupt and Insolvent Acts there is an express exception of the United States, but we cannot presume from this that Congress in- tended to reverse or abandon the rule of construction which would have excepted them. It was the exercise of that abun- dant caution, often found in statutes. Can we believe it was the intention of Congress, by the Act of 1889, to abandon all this system, to change all this financial policy ; to repeal the distinction heretofore made between ordinary debtors of the United States and "persons indebted as the principal in an official bond, or for public money re- ceived by him, and not paid over or accounted for, or for any fine, forfeiture, or penalty incurred by the violation of any law of the United States ?" Did Congress intend to give to the State Courts a power over the rights and interests, over the revenue of the government, which had been denied, and is yet denied, to its own Courts, which had been carefully kept in its own hands ? Are collectors of the customs, and debtors on duty bonds and their sureties, postmasters and other re- ceivers of public moneys, to be thus discharged from the liability of their persons for such debts ? Are persons impri- soned for fines, penalties, and forfeitures, to be liberated by the order of a State Court, acting under a State insolvent law ? Are such cases to be submitted to the judgment and discretion of every County Court in six-and-twenty States, with, practi- cally, no opportunity afforded to the United States to attend to their interests ; to detect fraud, or concealed property ; to oppose the discharge in any way or for any reason ? It is no extravagant case to suppose that an absconding defaulter for immense sums might return with full pockets, apply to some obscure County Court, in a distant State, and pass himself through the forms— for they are little more— of an insolvent law,, and be afterwards secure in the enjoyment of his con- cealed plunder, which the searching power of the United States might have forced from him. Are these extensive and vital NOVEMBER SESSIONS, 1839. 321 United States v. Hewes. changes in the system and policy of the United States to be efiFected by general words, having no express reference to them, or to the United States ? Assuredly such consequences would not have been left to a question of construction. The inten- tion ■would have been declared in express and unequivocal language. What will become of the right, always claimed, of a priority or preference of payment from an insolvent estate ? There is no provision for this in the insolvent laws of Pennsyl- vania, nor do I presume it will be found in any insolvent Act. But the law of 1839 declares, that " where, by the laws of a State, imprisonment for debt shall be allowed, under certain conditions and restrictions, the same conditions and restrictions shall be applicable to the process issuing out of the Courts of the United States." What the effect of these provisions will be upon the priority of the United States, I am not now called upon to say, but it would seem that, if the same conditions are to be imposed, no other or additional ones could be required of the debtor. All these difficulties, and many more, will be avoided, by adopting, in the construction of this statute, the reasoning of Judge Story already referred to, " that, in general, Acts of the Legislature are meant to regulate and direct the acts and rights of citizens, and in most cases the reasoning applicable to them applies with very different, and often con- trary, force, to the government," and that " the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the Act." Other difficulties and inconveniences will arise by extending the provisions of this Act to the United States. The provi- sions of the insolvent laws of the different States, the condi- tions and restrictions they impose upon the debtor, are various and entirely different from each other. The United States then, as well as their debtors, will have no uniform rule of re- sponsibility. There will be no harmony in the relations between the government and its debtor. The rights and remedies will be one thing in one State, another thing in another, and so 21 322 NOVEMBEE SESSIONS, 1839. United States v. Hewes. throughout the whole twenty-six States. Could such confusion have heen intended ; such an entire destruction of everything that can be called a system, — of all pretence to one policy ? Again : the Act of Pennsylvania, and, I presume, every other insolvent Act, requires a notice of some kind, either personal or by public advertisement, to be given to the creditors of the petitioner. To whom is this notice to be given for the United States ? Who is bound or authorized to receive it for them ? Is it the President, or the Secretary of the Treasury, who have heretofore had the superintendence of the debtors and debts of the United States ; or the District Attorney ? I have seen no authority given to either of them to accept any such notice, or to bind the United States by appearing in pursu- ance of it. There are other details in the insolvent law of Pennsylvania which it will be diflScult to apply to the United States. In the argument of this case the District Attorney referred to the Act of Congress of March, 1797, by which it is enacted, that all writs of execution, upon any judgment obtained for the use of the United States, in any Court of the United States, may run and shall be executed in any other State, but shall be issued from and made returnable to the Court where the judgment was obtained. Must the discharge of which the debtor may avail himself against this execution, be under the insolvent law of the State in which he is arrested, or of the State in which the judgment was obtained ; or will a discharge by the Court of any State be sufficient for his liberation ? The words of the Act would seem to refer only to the laws of the State from which the process issued, but it is by no means clear what construction might be put upon it under the notion of extending it in favor of liberty. I have given this case a careful examination, and extended the explanation of my views of it beyond what may be thought necessary, because I am so unfortunate as to differ in my con- struction of this Act of Congress, from the learned and esti- mable Judge of the Southern District of New York. It would have been very gratifying to me, if I could have come to the NOVEMBER SESSIONS, 1839. 323 United States v. Hewes. same result lie has, upon this question. It must, however, be remembered that the point was not argued or made a question by the District Attorney, in the case decided in New York. The attention of the Court was drawn to another part of the case, and the application of the Act to the debtors of the United States, although mooted, was not argued, as the Dis- trict Attorney had no doubt that the provisions of the Act did include the United States. Certainly the opinion of this learned lawyer and respectable gentleman ought to make and does make me more diffident of my own ; I am bound, however, to declare my opinion according to my own conviction of the true construction of the Act of Congress in question, and that is, that it does not include in its provisions the United States, or the debtors who may be imprisoned on a judgment obtained at their suit, in a Court of tlie United States. The prayer of the petitioner is denied. DISTRICT COURT OF THE UNITED STATES. (0 nstHD iistrirt nf l^tnn^[nauia, FEBKTJAEY SESSIONS, 1840. THE UNITED STATES OF AMERICA V. MATHEW L. BEVAN AND MAT HUMPHKIES, TRADING UNDER THE FIRM OF SEVAN AND HUMPHRIES. Where importers employ agents to pass goods through a custom-house, and the agents, known so to be, obtain certain gjods free of duty, if a mis- take of the revenue ofOioers is afterwards discoTered, by which the goods appear to have been chargeable, the agents are not liable for the sum so due. This was a suit founded on an alleged mistake of the officers of the Custom-House at Philadelphia. It appeared that the defendants had acted as agents of Deforest and Sons, of New York, in passing certain packages of wool through the Custom-House at Philadelphia, in March, 1836 ; that the revenue officers had reported the wool to be free of duty, under the second section of the Act of 14th July, 1832 (4 Story's Laws, 2318), and that it had thereupon been delivered to the defendants, who at once transferred it to their princi- pals. Subsequently an error of the revenue officers was disco- vered, which, when corrected, showed the goods to have been chargeable ; and suit was thereupon commenced against Bevan and Humphries. On the 5th March, 1840, the case came on for trial, before Judge HoPKiNSON, and was argued by Read, District At- torney, for the plaintiffs, and by Meredith, for the defendants. FEBKUARY SESSIONS, 1840. 325 United States v. Beyan and Humphries. After the evidence, Read, for plaintiffs, contended, that the duties having accrued on the importation, they might be sued for at any time, if they had been before omitted from mistake or accident. U. S. v. Lyman, 1 Mason, 501. Meredith, for defendants. The defendants are not the owners or importers of the wool, and the question is whether they are responsible as agents. The law gives a remedy against the importer or owner, but not against an agent who declares himself to be such. The cus- tom-house knew that the defendants, were no more than special agents for this transaction. As soon as the goods were sent to Deforest and Sons the defendants had nothing more to do with them. Judge HoPKiNSON, charged the jury as follows : Several questions of law and fact have been discussed in this case. The view I have of the preliminary question raised for the defence will render an examination of the other points un- necessary. The question is this : Supposing the weight of this wool to have been such as is alleged by the plaintiffs, and, of course, that its value was greater than eight cents a pound, thereby rendering it liable to duty ; and granting also, that the duty might now be received from the importers, notwithstand- ing the action of the officers of the custom-house, declaring the goods to be free, and as such delivering them to the defendants, as the agents of the importers ; are the present defendants, no fraud being alleged, liable for these duties ? If an agent conceals his agency and is dealt with as the principal, he is liable in his own person for the contract ? The defendants went to the custom-house as the declared agents of Deforest and Sons, for the special purpose of entering this wool for them and on their account, and had no further inte- rest in it. When the entry was made they received a permit, the goods were delivered to them as agents, and were at once sent, by them, to their principals, the whole agency being 32G FBBRUAKY SESSIONS, 1840. Knight V. The Attila. thereby discharged and ended. So they remained for more than a year, and then, after they had parted with the goods, under the written order or permit of the proper officer of the United States, they are called upon, in an action of debt, to pay this duty, under the allegation that a mistake was made, by the officers of the United States, in the value of the articles. What remedy the plaintiffs may have against the principals in this transaction, the true owners and importers of the wool, we are not called upon to decide, nor to anticipate the decision of the questions of law and fact which will then arise. I am of opinion that this action cannot be maintained against the present defendants. Verdict for the defendants. MANASSAH KNIGHT, SPECIAL ASSIGNEE OP THE COMMON- WEALTH INSURANCE COMPANY OP BOSTON THE BRIG ATTILA, HALL, MASTER; AND PESSENDEN, THOMP- SON, AND COMPANY, OWNERS. 1. Where no want of jurisdiction appears on the libel, but a plea to the jurisdiction is put in, and the case is heard on that question alone, the plea ■will be overruled. 2. Where it appears on the face of the libel that the Court has not jurisdic- tion, or that the libellant has not capacity to sue, the respondent may demur ; but if the inoapaoity'doea not appear, though true in point of fact, the respondent must take advantage of it by pleading in bar. 3. A bottomry bond, given in a home port, for money not intended to be used for, nor actually applied to, the purposes of the voyage, wiU not support a libel in this Court. This was a libel for bottomry. The libel was filed on the 30th April, 1838, and was, in FEBKUAEY SESSIONS, 1840. 327 Knight V. The Attila. effect, as follows: That the Commonwealth Insurance Com- pany, chartered by the Legislature of Massachusetts, on the 21st December, 1836, loaned and advanced to Fessenden, Thomp- son, and Company, two thousand dollars, on bottomry, on the body, tackle, and furniture of one-third of the brig Attila, of Boston ; the said Fessenden, Thompson, and Company being sole owners of said one third part, and Hall being master of the said brig. That the Attila was then lying at Boston, bound on a voyage to Genoa. That the said loan was for one year from the said 21st December, 1836, at marine interest of eleven per cent., said brig having liberty of any ports or places, during said period. And the said owners, on said 21st December, 1836, in consideration of, and as security for, said loan and interest, by an instrument of bottomry and hypothe- cation, of the same date (a copy of which was annexed to the libel), did hypothecate and transfer the said one-third of the said brig, to the said Company, for payment of the said loan and interest, at the end of sixty days after the expiration of said one year, with interest at six per cent, after expiration of one year and until the same should be paid, and did agree that if the loan and interest, or any part thereof, should re- main due and unpaid, said Company might sell the said one- third of said brig at auction, to satisfy the sum due. And the libellant averred that said term of one year and sixty days had fully expired at the date of filing the said libel, and the said Fessenden, Thompson, and Company had not paid the sum due and interest, or any part thereof, and the said brig Attila arrived at Philadelphia on the 26th April, 1838, where she still remained, and the said owners had refused to transfer or deliver the said one third part of said brig to said Company, or the libellant, and had refused to permit the same to be sold. The libellant further said, that on the 21st February, 1838, the said Commonwealth Insurance Company, in consideration of two thousand dollars paid by the said Mannassah Knight, of Boston, assigned to him all the right and interest of the said Company to the said instrument of bottomry or hypothecation 328 FEBEUAKY SESSIONS, 1840. Knight V. The Attila. and advantage thereon accruing, to which assignment their corporate seal was duly attached. Wherefore the libellant prayed process, &c. To this libel Fessenden, Thompson, and Company replied by filing a plea to the jurisdiction, and by an answer travers- ing and requiring proof of the facts, in the usual form. On the 18th September, 1838, the case came before Judge HoPKiNSON, for a hearing on the question of jurisdiction only, and was argued by J. R. Insersoll, for the libellant, and Rawle, for the respondents. Rawlb, for respondents. This case turns on the nature and extent of the Admiralty jurisdiction under the Constitution and laws of the United States. Judge Story extends this jurisdiction to charter- parties, and even to policies of insurance. De Lovio v. Boit, 2 Gall. 406 ; The Draco, 2 Sumner, 1.57 ; and see Ramsay v. Allegreve, 12 Wheat. 638 ; Davis v. The Seneca, Gilp. 26 ; Baines V. The Schooner James and Catherine, Baldw. 568. It is very certain that Courts of Admiralty in England, and in this country prior to the Revolution, did not exercise jurisdiction in cases like this. In " The Draco," Judge Story says that these con- tracts are a novelty in our own Courts. In order to give cognizance to the Admiralty, the contract must be maritime, that is, for the furtherance of the voyage, and not merely a loan on the security of the vessel, and, also, it must not be cognizable by the common law Courts. 12 Co. 79, " Admi- ralty." The case of the Admiralty, 13 Co. 51; Ross v. Walker, 2 Wils. 264 ; Howe v. Nappier, 4 Burr. 1944 ; Day v. Searle, 2 Strange, 968. A bottomry bond is, generally, for a loan made to the master, in a foreign port, for the fur- therance of the voyage. In such a case Admiralty has juris- diction. But no case is to be found where the Admiralty has taken jurisdiction when the money was borrowed in a home port, even if for the purposes of the voyage. Johnson v. Ship- FEBEUAEY SESSIONS, 1840. 329 Knight V. The Attila. pen, 2 Ld. Kaym. 983 ; Bask v. Fearon, 4 East, 319. This doctrine was never called in question but by Judge Story. 3 Kent's Comm., Sect, xlix., pp. 352, 360, 361 (3d edition). The Mary, 1 Paine, 671 ; Blaine v. The Charles Carter, 4 Cranch, 332 ; Hurry v. The John and Alice, 1 Wash. C. C. R. 293. The contract is made on land and is to be performed on land. In this contract or bond, there is no reference to the voyage, nor its objects, nor is the loan said to be for its prosecution ; nor does the libel make any such allegation. The loan does not appear to have had any connexion with the voyage or its objects. It was a mere borrowing of a sum of money, for the securing of which the vessel was bound, and marine interest given. But even on Judge Story's view of the law, the libel- lant cannot come here to prosecute his claim, because the par- ties provided their own remedy, excluding the Admiralty juris- diction ; the transfer of the vessel is absolute, with power in the lender of the money to sell, without the interference of any Court. J. R. IwGBESOLL, for libellant. The Draco, 2 Sumner, 157, is precisely the same case as this. The question here is, whether a bottomry bond, given by the owner, in a home port, is a subject of Admiralty juris- diction. In Maryland, in 1804, in New York, in 1824, and in Massachusetts, in 1835, the jurisdiction in such cases has been distinctly recognised, and there is no case to the con- trary. Pet. Adm. Decis. 235, Judge Winchester's opinion ; The Barbara, 4 Rob. 1 ; Peyroux v. Howard, 7 Pet. 341 ; Zane v. The President, 4 Wash. C. C. R. 457; Forbes v. The Hannah, Bee, 348. On the 24th September, 1838, Judge Hopkinson delivered the following opinion on the plea to the jurisdiction. If the plea which has been filed in this case, were stated in full, it would be simply this : — that the Court has not jurisdic- tion, because it does not appear on the face of the libel, or by the 330 FEBRUAKY SESSIONS, 1840. Knight V. The Attila. contract, that the bottomry loan, for which the bond was exe- cuted, was made in a foreign port. Such a plea would not be good. But the ground has been taken, that the money, in point of fact, was not borrowed for the purposes of the voyage, and that the contract, therefore, is not cognizable in an Admiralty Court. If this is so, then, to give it effect, it should have been specially stated, as ousting the jurisdiction ; and, being a mat- ter of fact, the libellant could have replied, either by taking issue on the fact, or by alleging the jurisdiction, notwithstand- ing. Or, if the respondents think that the facts of the case ought to appear on the libel, to give the Court jurisdiction, why did they not demur to the libel, as not showing sufScient cause against them, and rest the case upon that point. Or, yet another course was open to them. They might have more fully set out, by way of special answer, that, admitting the matters of fact alleged in the libel to be true, they were insufficient for the libellant to proceed upon, or to oblige the respondents to answer ; or that, from some reason apparent on the face of the libel, or by reason of the omission of some fact which ought to be contained therein, or for want of some cir- cumstances which ought to be apparent therefrom, the respon- dents ought not to be compelled to answer ; and have asked the judgment of the Court whether they ought to be compelled to answer. The demurrer in equity, as in law, can only be for objections apparent on the bill itself; either from matters contained in it, or from some defect in form; and this principle is equally applicable to the case before us. The demurrer cannot state what does not appear on the face of the libel, and therefore in this case, it could not state that the loan was made in a home port, for that does not appear, and, therefore, if that matter of fact is the ground of objection, it should have been set out, as any other fact in an answer. The demurrer could only have FEBRUAEY SESSIONS, 1840. 331 Knight V. The Attila. stated that the fact of the loan being in a foreign port did not appear, and that would not oust the jurisdiction. If it appears on the face of the libel that the libellant is not entitled to sue, as in the case of an infant or a married woman, the respondent may demur; but if the incapacity does not appear in the libel, although true in point of fact, then the respondent must take advantage of it by pleading in bar, or by answer. If it appear on the face of the libel that the Court has not jurisdiction of the case, the respondent may demur ; for in- stance, if it had been affirmatively stated in this libel that the loan was in a home port,, and if in such a case the Court would not have jurisdiction, it would be ground for demurrer. The plea to the jurisdiction is overruled. The respondents having obtained leave to amend their an- swer, filed an amendment in effect as follows : Respondents say, that in December, 1836, they were co- partners in trade in Boston, and the owners of one third part of the said brig Attila. In the said month they borrowed of the Commonwealth Insurance Company two thousand dollars, and executed as security the bond mentioned in the libel, by which the said third part of the said brig was transferred in pledge or mortgage to the said Insurance Company. There was no agreement or understanding between the Company and the firm that the money so loaned should be applied to said vessel or her cargo, in any wise. In consideration of the execution of the said bond, they received from the said Company a check, payable at a future day, and its amount was not collected or received until the vessel had sailed on a foreign voyage, and was not, nor was any part thereof, expended on said vessel nor about her voyage. The case came on for a hearing on the amended answer, before Judge Hopkinson, on the 24th January, 1840, and evi- 332 FEBEUAEY SESSIONS, 1840. Knight V. The Attila. dence was given in support of all the matters of fact alleged in the answer. The case was argued by the same counsel. J. R. Ingbrsoll, for libellant. The question to be argued is one of pure Admiralty law : it is whether a bottomry pledge, given by an owner in his own port and place of residence, for money not used upon the ship, or in the voyage, is a proper subject of admiralty jurisdiction. This depends upon a series of judicial adjudications for its answer. American Insurance Company v. Canter, 1 Pet. 511 ; Hand V. The Elvira, Gilp. 60. The agreement of the parties in this case, gives a lien as well as if it were given by the local law, and this Court may take cognizance as well in the one case as the other. There is no local law prohibiting such an agreement. Where repairs are made upon a vessel, the law gives a lien without the consent of the party ; here, the consent of the parties gives the lien without the action of the law. The Virgin, 8 Pet. 538. Had the bond been given by the captain, it would undoubtedly have created a maritime lien. There must be necessity to justify the captain in hypothecating the ship, as he is only an agent; but the principal, the owner, needs no necessity, no justification to act as he pleases with his own ; Blaine v. The Charles Carter, 4 Cranch. 328 ; Tanno V. The Mary, Bee, 120 ; Boreal v. The Golden Rose, Bee, 131; The Mary, 1 Paine, 671 ; Conard v. The Atlantic Insurance Company, 1 Pet. 386, 436, 429. If the owner of a ship coming from Canton goes to an Insurance Company, produces the bill of lading, and borrows money on it on respondentia, the money is not applied to the cargo or the voyage, nevertheless the lien is good. The Draco, 2 Sumn. 157, 188 ; Baines v. The Schooner James and Catherine, Baldw. 568. The Draco, is the very case of the Attila. The Orleans v. Phoebus, 11 Pet. 175. Rawlb, for respondent. The libellant relies entirely on the decision of Judge Story, in 2 Sumner; we rely on Judge Baldwin's opinion. The FEBKUARY SESSIONS, 1840. 333 Knight V. The Attila. nature and extent of Admiralty jurisdiction has been a fruit- ful source of difference of opinion among our most eminent jurists. Ramsay v. AUegreve, 12 Wheat., 614, 631, 632, 638, 640 ; Davis v. The Seneca, Grilp., 26 ; Bains v. The Schooner James and Catherine, Baldw. 544, 549, 550, 551, 554, 556, 558. Admiralty Courts in England exercised no such juris- diction at the time of the adoption of the Constitution, as is now claimed here. Even Judge Story confesses these things to be novelties in our Courts. The Draco, 2 Sumn. 173. To give the Admiralty jurisdiction, the contract should be strictly maritime, and in furtherance of the voyage, and there should be no remedy at common law. The Admiralty, 12 Co. 79 ; The Case of the Admiralty, 13 Co. 51. Seamen's wages are the only case of contract in which both Courts have jurisdic- tion. Howe V. Nappier, 4 Burr. 1944, 1950; Day v. Searle, 2 Strange, 968 ; Ross v. Walker, 2 Wils. 264. A bottomry bond, properly speaking, is given in a foreign port, by the master of a vessel, to enable the voyage to be prosecuted. There is no case where the Admiralty has taken jurisdiction when the loan was in a home port, even if for the purpose of the voyage. Johnson v. Shippen, 2 Ld. Raym. 988; Forbes V. The Hannah, Bee, 348 ; Hurry v. The John and Alice, 1 Wash. C. C. R. 293. In the case of the Draco, Judge Story referred to Conard v. The Insurance Company (1 Pet. 511), only on the point of the validity of the contract, not on the question of jurisdiction. Even by the Civil law, a bot- tomry bond is never given but for a loan for purposes of the voyage. The Draco, 2 Sumn. 166, 180. We do not dispute the validity of the contract, but only the remedy for it in this Court. It is a contract made in the body of a county, on the pledge of a chattel, which happens to be a ship. It is not a maritime contract, but an ordinary loan on security, with a personal obligation to pay the money. In the case of several bottomry bonds, the money loaned last is paid first, for it was loaned for the benefit and security of previous lenders. But it would not be so in this case, the 334 FEBRUAKY SESSIONS, 1840. Knight V. The Attila. loan not having been made for any such purpose. The parties to this bond have provided their own remedy, and given ex- press directions how it was to be employed ; this Court, there- fore, has no right to interpose. J. H. Ingbesoll, for libellant, in conclusion. \Conard v. the Insurance Company, although not an Ad- miralty case, was an action of trespass for interfering with a maritime contract, and is, therefore, a ruling case. It was re- cognised as a maritime contract, or the judgment of the Cir- cuit Court would have been reversed, on the ground of usury. The whole argument went on the ground that it was a mari- time contract, or it was void ; if it was a pure maritime con- tract, the Admiralty had jurisdiction to enforce it. 1 Pet. 409, 415, 437. This case is completely covered by that of the Draco. On the 1st April, 1840, Judge Hopkinson delivered the fol- lowing decree in the case : " I, Joseph Hopkinson, Judge of the District Court of the United States, in and for the Eastern District of Pennsyl- vania, having duly considered the libel, answer, and replica- tion, filed in this cause, as also the proofs exhibited on both sides, do thereupon adjudge, order, and decree, that the libel be dismissed, and that judgment be entered for the respon- dents for costs." On the 2d April, 1840, an appeal was entered and allowed upon this decree, to the Circuit Court of the United States, for the third Circuit. On the 12th May, 1840, the decree was affirmed in the Cir- cuit Court, with costs. FEBRUARY SESSIONS, 1840. 335 The Cloth Cases. THE CLOTH CASES. While these cases excited much attention at the time of their trial, both from the extensive character of the frauds perpetrated, and from the general acquaintance with the parties concerned, yet, on account of the paucity of legal principles developed, and the great similarity of all the cases, it has not been thought advisable to report each in detail. The great struggle took place in regard to the cloths claimed by Taylor and the Blackburnes. This case, therefore, has been inserted at length ; and a general history of the Tyhole trans- action, drawn from official sources, has been thought a suffi- cient notice of the other suits. The goods in controversy in these cases, were all from the district of Saddleworth, in Yorkshire, in England, and had been entered at the custom-house by persons from that district, whose business in this country was the importation and sale of woollen goods. By far the greater portion of the cloths and cassimeres of low and medium prices, imported into the United StSjtes for many years past, had been manufactured in this district of Saddleworth. It is inhabited principally, or to a great extent, by persons engaged in the manufacture of such articles. The goods made there, which are intended for the British market, ar^ generally sold in the bauk or unfinished state, at the cloth hall in Huddersfield. The goods which are finished in Saddleworth, were generally sent to this country, the local sales being so limited that the district is rarely re- sorted to by purchasers from other places. With occasional exceptions, this appears to have been the state of things in Saddleworth in 1838 and 1839, when the goods in controversy were exported, and for many years previous. The high rate of duties in this country on imported woollens afforded a strong temptation to persons in Saddleworth, and their associates in 336 FEBRUAKY SESSIONS, 1840. The Cloth Cases. this country, to resort to measures for the evasion or reduction of their amount. The character and extent of the measures to which they resorted for this purpose, will hereafter be stated. Their effect was to drive other importers out of the market, and secure a sort of monopoly to these parties — some of whom privately declared that they could import goods at such rates as to render competition with them impossible, even on the part of skilful and experienced importers, who had partners or agents residing in England, qualified in every manner to take ad- vantage of the most favorable opportunities of purchasing. It was testified that a member of the house of William Blackburne & Co., a partnership of whom mention will be made presently, at a time when the duties on cloths and cassimeres were not less than 41 per cent, on their value, declared that he could buy them in England, and have them delivered at his warehouse in Philadelphia, in such a manner that only 25 per cent, duty should be paid on them, and no questions asked. Early in the summer of 1839, the attention of the then Col- lector of New York was called, by the Secretary of the Trea- sury, to reported frauds in the importation of British woollens. In the same summer the case of the United States v. Samuel R. Wood, tried at New York, and that of the United States v. Bottomley, at Boston, made it a matter of public notoriety that there had existed, for years, a combination, between certain parties residing in Saddleworth, and persons from the same district who were temporary residents in this country, to pass goods through the custom-house at New York, by means of fictitious invoices, most of them representing sales of the goods to have been made by the parties abroad to those in this country, at prices greatly below the market value of the goods in England. In the case at Boston it appeared that a corrupt understand- ing had existed between the importer and an oflScer of the re- venue at New York ; and there was some ground to believe that the success of the fraud had been facilitated by a lax practice in England of permitting the export duty to be paid FEBEUAEY SESSIONS, 1840. 337 The Cloth Cases. upon a fictitious representation of the value of the goods ex- ported, -whicli corresponded neither with their actual value on the one hand, nor on the other hand with the value or price alleged in the invoice by which it was intended that they should be entered in this country. In the case of Wood at New York, however, the developments were of an astonishing character. The father of the importer had failed in England, and his as- signees, under a commission of bankruptcy, had placed the counsel for the prosecution in possession of the letters from the son relating the course of his transactions, and referring inci- dentally to similar transactions on the part of other importers of the same class. Of the persons whom he thus incidentally named as parties to similar frauds, suspicion had for some time been entertained, on evidence which had occasionally trans- pired in the course of investigations previously instituted. But the disclosures on this trial rendered this a matter of certainty, and pointed out distinctly the manner in which the frauds were perpetrated. The invoices on which the importations of Wood had been entered, represented as sales what were in reality mere con- signments from the father to the son as an agent or partner. The correspondence not only negatived the reality of the sales, as such, but showed clearly that the pretended prices in the custom-house invoices differed from the valuations in other in- voices referred to by the parties, and were, indeed, regulated by no other criterion than that which had been ascertained as the minimum standard of successful deception of the examiners in the appraiser's department, by whom goods were ordinarily passed through the custom-house. Shortly after the decision of the two prosecutions at New York and Boston above-mentioned, the attention of persons in Philadelphia was turned toward certain commission and auc- tion houses, of whom it was known, that their principal or en- tire business was the sale of goods imported into New York from Saddleworth. Private information was obtained that on a Sunday, in the early part of August, 1839, B. Broadbent, 22 338 FEBEUAEY SESSIONS, 1840. The Cloth Cases. of Saddlewortli, formerly an importer at New York, afterward in the employment of Mr. P. Brady, one of tlie agents referred to, and at that time a partner in the firm of Davis, Broadbent & Co., who were also concerned in similar agencies, had visited Jeremiah Adshead, formerly of Saddleworth, and stating his apprehensions lest the store of Davis, Broadbent & Co., should be visited and searched by custom-house oiiScers, had requested the assistance of Mr. Adshead, who was a rapid writer, in altering the marks upon certain goods in their store. Mr. Adshead accompanied him, and assisted in making tickets with numbers different from those on the original tickets. On that day, these new tickets were, to a considerable extent, substi- tuted for the original ones. It seems that Mr. Broadbent exercised a discrimination in altering the marks of goods re- ceived from certain importers, and leaving unchanged the marks of those received from others. It did not appear whether he used this discrimination in consequence of com- munications with any of the parties, or from a knowledge that some of them had already altered the marks in New York, as was the fact, or from what other reason. In the same and in the succeeding week, other goods were received by Davis, Broadbent & Co., from New York, of some of which the marks were altered in like manner. Adshead, the person who on the Sunday referred to had assisted in this operation, was one of the proprietors of an establishment to which the agents of the Saddleworth importers had been in the practice of. sending cloths to be refinished, or cut and headed. "With the privity of the same Mr. Broadbent, this person caused goods which had been sent to his manufactory to be secreted elsewhere. Some of these goods were placed in the upper story of a small grocery store ; another portion in one of the bed-rooms of a tavern, in the cellar of which another portion was placed in an old oil cask, and covered with vegetables. Similar measures of concealment were likewise pursued by other agents of these importers. Batturs, Okie & Co., an auction house, sent some goods, of the importation of John Piatt and FEBRUARY SESSIONS, 1840. S39 The Cloth Cases. William Bottomley, to a hardware store, with a request that they should be kept out of view. In all the places mentioned, when the officers of the customs afterward came to search for the goods, the persons in possession of them denied that they had any cloths or cassimeres in their possession. Persons privy to some of these measures of concealment, disclosed a portion of what had occurred, to parties through ■whom information was communicated to the District Attorney, that certain goods, which had been fraudulently passed through the custom-house at New York on false invoices, were believed to be in Philadelphia in the hands of agents of the importers. He immediately made a requisition upon the collector of New Tork, to send to Philadelphia an oiScer by whom the suspected goods of New York importation might be identified. The collector of Ncav York despatched upon this duty an officer, who arrived in Philadelphia on the 19th of August, 1839, and, under the direction of the District Attorney, applied for in- structions to Mr. Wolf, then collector of the port of Philadel- phia. On the same day, under the direction of Governor Wolf, one thousand pieces of cloths and cassimeres, of New York importation, and thirty-one pieces, which afterward ap- peared to have been brought from Canada, and entered at Eouse's Point, were seized at the store of Davis, Broadbent & Co. Two days afterwards, on the 21st of August, a visit was made, by officers of the revenue collection service, to the store of William Blackburne & Co., in the same neighborhood. William Blackburne & Co. were the principal receivers and sellers in this city of goods which John Taylor, Jr., imported to a large extent through New York. John Taylor, Jr., was of Saddleworth, and received his importations thence through Abel & Thomas Shaw, a son of whom was a member of the firm of William Blackburne & Co., and to whom all the other members of this firm were related or connected by marriage. Mr. Taylor also received some goods from other parties in England. His annual importations were of very large amount. It appeared that Mr. Blackburne rented a store in Church 340 FEBRUARY SESSIONS, 1840. The Cloth Cases. Alley, No. 24, in Philadelphia ; that the adjoining store. No. 26, was rented by Mr. Worrell, and that the lower, or ground story, was occupied by him. The second story or floor of this store, which extended over the whole building, was in the oc- cupancy of Mr. Blackburne, and the access to it was by a large opening or doorway from Mr. Blackburne's second story into it. This door was usually kept open, and was so in July and August, 1839, and up to the 20th of August, on the day when the seizure was made. On the morning of that day, the porter of Mr. Blackburne saw in a newspaper, or was informed by somebody, that a seizure had been made of Mr. Broadbent's goods. Whether Messrs. Blackburne had the same information or not, did not appear. On the same morning, the hour was not precisely fixed, at about eight or nine o'clock, this door or passage was completely blocked up, and concealed by boxes, &c., so that persons going into Mr. Blackburne's second story, saw nothing by which they could discover or suppose there was any communi- cation between the two rooms. The officers on their first visit did not discover it ; they went away ; but on getting further information, they returned, and by introducing a stick between the boxes, they found where the passage was, removed the obstructions which concealed it, and went into the adjoining room. It was entirely dark, al- though Mr. Blackburne's porter says he had opened one of the windows that morning. In this room the goods in ques- tion were found, some in their cases, some lying on them. When the officers first came to Mr. Blackburne's store he was there. They told him their business; he said they might search. He said he had no goods in his possession but what were imported through the port of Philadelphia. The officers examined the cloths and cassimeres in the lower story, and then went up stairs of store No. 24. After looking at some cloths and cassimeres there, one of them asked Mr. Blackburne if they were all the cloths in his possession. He answered, " Yes, FEBEUAKY SESSIONS, 1840. 341 The Cloth Cases. you have seen all." He was asked if he had no other store in the neighborhood. He answered, "No, you have seen all that we have." The officer did not on this visit discover the passage into the next store. They returned in the afternoon. One of them said to Mr. 0. Blackburne that they wished to see the second story over Mr. Worrell's store. He replied, "You have seen all the rooms that we have." The officers went up stairs and searched for the entrance into the next room. He denied that there was any access to that room. They proceeded in their search to discover one, and at last he said, " The entrance is behind those boxes." The officers were thrusting a stick between the boxes. In the next room the goods were found, and Mr. Blackburne said he was the owner of them. The goods of New York importation, thus found concealed at W. Blackburne & Co.'s, seven hundred and thirty-nine pieces, were, of course, seized. On the next day an additional seizure was made at P. Brady's, of five hundred and fifty-eight pieces of New York importation, which had been received on consignment from parties, most of whom had consigned other portions of the same importations to Batturs, Okie & Co., or Davis, Broadbent & Co. Besides the seizure at Davis, Broad- bent & Co.'s, Blackburne's, and Brady's, one hundred and sixty- nine pieces were found, in small lots, in the hands of other agents of the importers, and one hundred and seventy-six pieces in the hands of parties who afterwards alleged that they were purchasers of the goods for a valuable consideration. The whole quantity of cloths and cassimeres seized in Au- gust, 1839, was twenty-six hundred and seventy-three pieces, all from Saddleworth, of which it is believed that twenty-five hundred and eighty-four pieces had been imported into New York, fifty-eight pieces into Philadelphia, and thirty-one pieces, imported through Rouse's Point, had been originally brought into Canada. Informations were filed in due course, alleging as causes of forfeiture, under several different counts, what may be resolved 342 FEBEUARY SESSIONS, 1840. The Cloth Cases. into the substantial charge of the goods having been falsely invoiced with intent to defraud the revenue. To the goods thus libelled forty-four several claims were interposed, under -which as many distinct issues were joined. The parties making these forty-four claims were twenty-four persons, some of whom claimed goods at each of two or more different places. The result of the trials as to the twenty- five hundred and eighty-four pieces of New York importation was, that as to twenty-three hundred and forty-two pieces there were verdicts for the United States. Of the remaining two hundred and forty-two pieces, there were entries of nolle pro- sequi as to one hundred and twelve pieces in one case, and two pieces in another case. In regard to these one hundred and fourteen pieces, the claimants offered to admit on the record that there was probable cause for the prosecution ; and the Dis- trict Attorney did not think that the evidence on the part of the United States, would have justified the asking for more than a certificate to this effect. It certainly was not so strong as to warrant the urging the condemnation of the goods. As to one hundred and eighteen pieces, embraced in nine cases, in each of which they formed a portion only of the goods in controversy, there were verdicts for the defendants, with a certificate of the Court that there was probable cause for the prosecution. Of the fifty-eight pieces believed to have been imported at Philadelphia, forty-two pieces were condemned, and sixteen pieces acquitted, the Court certifying, as to the latter, that there was probable cause for the prosecution. The thirty-one pieces imported through Eouse's Point, were the subject of a correspondence between the deputy collector at that place, an4 the late collector at New York. The person who had entered them was the same party claimant of one hundred and twelve pieces imported at New York, as to which a nolle i^rosequi had been entered as above; and upon an examination of the cor- respondence and other papers exhibited on his behalf, it was considered a proper case for a similiar discrimination in his favor. Probable cause for the prosecution being admitted FEBRUARY SESSIONS, 1840. 343 The Cloth Cases. in like manner on the record, a nolle prosequi was, therefore, entered as to these thirty-one pieces, with the sanction of the Court. The goods consigned to Philadelphia, were usually selections of parts of several importations ; and, in most cases, portions of them had been sold, leaving on hand the goods in contro- versy. These goods had, in many instances, been so long in this country, that if really bought for exportation, according to the tenor of the invoices, the prices of them must have been re- mitted to England. Correspondence and accounts must, there- fore, have been interchanged with persons in England, as well as with persons in Philadelphia. Before the trials, the counsel of the United States, adverting to these circumstances, gave timely notice to the several parties to produce all invoices, correspondence, accounts, and books of account, with the parties in England, from whom the goods in question purported to have been received. Under these notices, various calls were made, during each of the contested trials, for particular ac- counts and documents; of some of which, the existence ' and possession by the defendants were distinctly proved. These calls were not, in a single instance, responded to by the pro- duction of a letter, voucher, or other paper, or of a book con- taining an original or other account of their pecuniary trans- ac'jons with the parties in England, and no excuse was given foi withholding them. The first case tried was that of a claim interposed by John Taylor, Jr., and William Blackburne & Co., to the goods con- cealed as above at William Blackburne & Co.'s, Mr. Taylor alleging himself to be the owner and importer, and William Jlackburne & Co., as his factors, alleging that they had ad- ranced to him fifty-nine thousand dollars upon the goods. Upon the trial, the United States proved the concealment of the goods, and attendant facts detailed above, and proved a variety of circumstances tending to show that Taylor was not really a purchaser of the goods in the fair and proper sense of the term, but had received them under some secret understand- 344 FEBKUAEY SESSIONS, 1840. The Cloth Cases. ing or arrangement, the result of a combination between him and the parties in England, under which the goods of his im- portation were invoiced at prices lower than those of the English market. It was also proved by importers of cloths and cassimeres, as to the goods in question, that the prices mentioned in the invoices were generally much lower than those ordinarily paid by purchasers in England at the same period. There was other evidence tending to prove that there were fictitious deductions inserted in the invoices. A point was raised and insisted upon, as will be seen in the following report of the case, that the goods having been passed through the custom-house at New York, and duties assessed and paid on the footing of the invoices being correct, it was afterwards too late to allege the contrary as a cause of for- feiture. I As regarded the law of the question, it was a sufficieijt answer, that if the invoice on which the importer had obtained a permit for his goods was a false one, and had been the meais of practising a deception upon the officers who had passed tjie goods, the fraudulent party should not be allowed to take ad- vantage of his own wrong, and rely upon the fraud itself agj a shield and protection against the penalties imposed upon tie very act on which he relied for his immunity. Of this opiniin was the Judge. He left the facts to the jury, who, after a protracted trial of several weeks' duration, returned a verdijt for the United States. i Shortly before this trial, some of the claimants had obtained at New York, from Chancellor Kent, an opinion, which was cir- culated extensively through the newspapers, that " when the duties have been paid and the goods fairly passed through the Government offices into the general mass of the circulating commerce of the country," the collector had no right to seize goods for any of the causes of forfeiture set forth in the reve- nue collection acts. The context of that part of his opinion which contains this important word ^^ fairly" was, by many persons, supposed to indicate the opinion of this eminent jurist, FEBKUARY SESSIONS, 1840. 345 The Cloth Cases. that a permit, though obtained hj fraud, would operate as an irrevocable exemption of the goods from prosecution for any forfeiture previously incurred. This can scarcely have been his meaning ; because, thus understood, his opinion would be opposed to the whole course of judicial decisions on the sub- ject. Nevertheless, this view of the law had been pressed with such earnestness, that, after the trial, the Judge acceded to a request on behalf of the claimants that the trials of the re- maining cases should be postponed until after a decision of this point by the Supreme Court. After this, no case involving this precise point under the same enactments on which the in- formations were framed, came before the Supreme Court, until it was decided in Wood v. The United States, reported in 16 Peters, 342. The opinion of the Supreme Court, delivered on the 7th March, 1842, resolved the doubt, if there ever was one, upon this subject. The Court said : " The second instruction of the Court is, in effect, that if the invoices of the goods now in question, were fraudulently made, by a false valuation to evade or defraud the revenue, the fact that they had been entered, and the duties paid or secured at the custom-house at New York upon those invoices, was no bar to the present informa- tion. This instruction was certainly correct, if the sixty-sixth section of the revenue collection Act of 1799, chapter 128, now remains in full force and unrepealed : for it can never be permitted that a party who perpetrates a fraud upon the cus- tom-house, and thereby enters his goods upon false invoices and false valuations, and gets a regular delivery thereof upon the mere payment of such duties as such false invoices and false valuations require, can avail himself of that very fraud to defeat the purposes of justice. It is but an aggravation of his guilt, that he has practised imposition upon the public officers, as well as perpetrated such a deliberate fraud. The language of the sixty-sixth section completely covers such a case. It supposes an entry at the custom-house upon false invoices, with intent to evade the payment of the proper duties. 346 EEBKUAKY SESSIONS, 1840. The Cloth Cases. and the forfeiture attaches immediately upon such an entry, upon such invoices, with such intent. The success of the fraud in evading the vigilance of the public officers, so that it is not discovered until after the goods have passed from their custody, does not purge away the forfeiture ; although it may render the detection of the offence more difficult and more uncertain. The whole argument turns upon this, that if the custom-house officers have not pursued the steps authorized by law to be pursued by them, by directing an appraisement of the goods in cases where they have a suspicion of illegality, or fraud, or no invoices are produced, but their suspicions are lulled to' rest, the goods are untainted by the forfeiture, the moment they pass from the custom-house. We cannot admit that such an interpretation of the objects or language of the sixty-sixth sec- tion, is either sound or satisfactory." Nearly two years had elapsed since the trial of the case against John Taylor, Jr., when this decision of the Supreme Court removed every obstacle to the trial of the remaining cases upon their fair merits. The report of most of them, however, would consist in stating that, on the examination and appraisement of the goods by persons conversant with the British markets, they had been found greatly to exceed in value the prices stated in the respective invoices; that the pro- ceeds of goods of the same importations, sold before the seizure, had been such as more than verified the accuracy of the ap- praisements of the goods in controversy ; that a similar con- firmation was found in the limits affixed to the goods in con- troversy on their transmission to Philadelphia for sale, after making full allowance for the largest difference between limits and actual sales, apparent on a recurrence to the accounts of previous transactions through the agents in Philadelphia. In some cases it appeared that the prices of importation of goods received after the seizure had been considerably higher than those of previous importations, received by the same im- porter from the same parties in England, and there were cases where it also appeared that goods on their way from England FEBKUAEY SESSIONS, 1840. 347 The Cloth Cases. to this country at the time of the seizure of the goods in ques- tion, were not entered upon the original invoices, but were allowed to remain several months in the public stores until new invoices were obtained from England, and were then en- tered at prices considerably higher than those of previous im- portations. In most of the cases the parties or their agents had resorted to poncealment or other artifices, of the character of some of which a description has been already given. In all the cases it was fully in proof that the particular importations in question were not isolated or distinct transactions, independent of or unconnected with others, but were parts of a connected series of importations made under some general contract or arrangement. The case of Joseph Wrigley at first appeared to involve peculiar considerations. A widowed mother, two daughters, and three sons, in Saddleworth, were said to have derived their support for about 20 years from doing journey work in different branches of the woollen manufacture. The mother died in 1836 or 1837, and the sons, in partnership, continued the business in which they had been engaged in her lifetime — which was making cassimeres, — by doing a part of the work themselves, and getting the other parts of the manufacture performed by artisans in the neighborhood, as they could afford to pay for it — some of the members of the family working in the mean time, at intervals, for neighboring manufacturers. In January, 1889, the importer of the goods in question came to the United States, when it was arranged that the former establishment of the family should be broken up. Of the daughters, one married, and the other left the family residence. The other two brothers were to remain in partnership at the homestead, with a portion of the mother's furniture and effects, for which they were to be charged, and the rest were to be sold at auction. The brother who came to America left behind him his share of these effects, and a sum of money, in the hands of the two other brothers, the whole amount of which, except a small invoice of shawls, which he took out with him, 348 FEBKUARY SESSIONS, 1840. The Cloth Cases. was to be worked up into cassimerea, which he was to receive at the cost of manufacture, in payment of what should be found due to him upon the settlement of the concern, which was to take place after his departure. Accordingly, in April, 1839, an invoice was made out of 17 pieces of black cassimere, as sold by one of the brothers in England to the brother in this country, by whom they were entered, and passed through the New York custom-house, on the 28th May following, as pur- chased goods. Of these 17 pieces, 14, seized in August, 1839, at Davis, Broadbent & Go's., where he had placed them for sale, formed the subject of controversy. In October, 1839, the two brothers who had remained in Saddleworth, dissolved their partnership. One of them came to this country, and was sworn for the importer as a witness, to prove the entire fairness of the transaction, and the impossibility that there could have been any fraudulent motive in respect to the revenue. He proved the transactions, of which the above is an outline, and positively swore, that, except the shawls, there had been no goods previously sent by them to America. There were, however, many circumstances which attracted suspicion, and rendered necessary an extended and careful cross-examina- tion of this witness. In the first place the goods were invoiced, certainly siayty per cent., and probably seventy-five -per cent., below their market value, and doubtless, greatly below even their cost of production, to the brothers in England, who were the alleged manufacturers. The circumstance of these two brothers having continued their business on that side of the water, until the time when the news of the seizure of these goods would regularly have reached them, and having then abruptly closed it, compared with the fact that the package in which these goods were imported, was numbered W 100, and that the number 2,300, on the first piece of the goods con- tained in it, answered to an ordinary average of 23 pieces to a package ; and that the shawls which he had brought with him, were in a package marked W 99, furnished strong ground for the belief that these importations were part of a connected FEBKUARY SESSIONS, 1840. 349 The Cloth Cases. series, of which 98 more or less had preceded the one in ques- tion; and more would have followed had not the course of business been arrested by the seizure. In cross-examination, the witness professed the most entire ignorance of everything relating to the goods, and to the business in which he had been a partner, alleging that he and the importer had always left everything like writings, accounts, and calculations, to their brother, who was still at home ; and that he himself was so ignorant, as not to know the cost of a single process of the manufacture, although he had himself received wages in one of the processes at which he had worked in the neighborhood. As the cross-examination proceeded, however, it appeared that he had known the name of the ship-broker at Liverpool, and other matters not entirely reconcilable with such entire igno- rance. He was closely questioned as to the handwriting of his two brothers. That of the importer, ascertained by his entry and signature of the oath annexed to it, was pointed out to him as on papers which he had said were written by the other brother now in England. Upon this he said that he was not sure which of them had written what was shown to him, but that the latter had usually made out the invoices. On following rapidly with the questions, which naturally arose upon this observation, it appeared that for many years, in the lifetime of the mother, and subsequently, the family had been in the habit of occasionally sending goods to this country, some or all of which had been sold here for them, as he said, by an importer of Saddleworth, residing in New York, who had accounted to them for the proceeds. The whole theory of the supposed accidental character of the importation in ques- tion was thus destroyed, and the attempted explanation of the manner in which such low prices had been inserted in it, and of the reason for giving the transaction the form of a purchase, entirely failed. The court left to the jury the question whether they believed the invoice to have been made out at low prices with intent to evade the payment of a part of the duties to which the goods were justly liable, saying that if it 350 PEBEUAEY SESSIONS, 1840. The Cloth Cases. was really a sale as between the parties, the small amount of the price was otherwise no cause of forfeiture. Under this instruction the verdict was for the United States. This case is since divested of all doubt, and therefore of all sympathy, by the ascertainment of what might have been anticipated from the evidence on the trial, viz. : that the same party in New York who was testified by the witness to have previously received consignments for account of this family, had in 1838 entered as sold ly them to Mm at least two previous invoices of packages marked W 96 and 97, and it is highly probable that other importations of the series with this mark could be traced on a further examination in the custom-house at New York. Another case, in which evidence of the actual purchase and price of the goods was offered, was that in which James Mallalieu was the claimant. The goods imported by him were invoiced as sold to him by different persons, four of whom were examined under a commission. Two were his brothers, the other two his brothers-in-law. Each of them testified that the respective goods were actually sold to him at the prices mentioned in the respective invoices, nine in number, which bore date at different periods in the winter and spring of 1838, '39, and that the witness had no interest, direct or indirect, in the goods or their proceeds, and had received the prices mentioned in the respective invoices, but had not received, and was not to receive anything more. In the inter- rogatories in chief, each witness was asked to "state under what contract or order from the said claimant, if any, or under what arrangement, if any, the saidbale or bales of goods were sold or purchased," and to "state the manner of the sale or pur- chase as aforesaid of su^h goods, and whether for cash or on credit," &c. ; and as to any verbal contract, order or arrange- ment, to which he might testify, was in a cross-interrogatory requested to state whether he was in person present when it was made, &c. In answer to these interrogatories, each wit- ness testified that the goods mentioned in the respective invoices were sold upon credit, under a verbal contract made ly the FEBEUARY SESSIONS, 1840. 851 The Cloth Cases. claimant with each of them personally some time before the dates of the invoices. It was clear that at these dates the parties Tvere three thousand miles apart, and that the alleged antece- dent verbal contract, made when they were together, was a general one, not applicable specifically to the particular goods in question alone. Yet neither witness testified what were its terms or conditions, or even stated on what credit the alleged sale under it was made. Two importers of New York, each of whom had passed a great portion of the last fi,ve years in England as a purchaser of Yorkshire cloths and cassimeres, two importers of Philadelphia, who had been in Yorkshire, and bought such goods there in 1839, another who for twenty years had had a partner residing in England, engaged in the same business, from whom he had been constantly receiving importations, and two others, who, without having been in England, had been importing with great facilities, and oppor- tunities for doing so to advantage, in all, six experienced and skilful persons, together with the oflScial appraisers of this port, had concurred in appraising these goods at rates from which it appeared that they were invoiced forty-five per cent, below their market value in Yorkshire, at the time of exportation ; and upon evidence of the actual cost of the materials and wages required to produce them in England, it appeared that they exceeded the prices of the invoices, exclusive of any allowance for rent, taxes, wear and tear of machinery, super- intendence, manufacturer's profit, forwarding, warehouse rent, interest, &c. It app^red that other goods included in the same invoices, had been sold in Philadelphia by the piece, with the factor's guarantee of sale, at an advance of one hundred and fifty-six per cent, on the prices mentioned in the invoices on which they had been imported, at a time when the ordinary advance on the invoice was eighty to eighty-five per cent., or about ten per cent, beyond cost and charges. The importer, Mallalieu, had come to this country in November, 1838, to succeed, as a resident at New York, a person, who, having returned to England in December, 1838, 352 FEBRUARY SESSIONS, 1840. The Cloth Cases. was one of the exporters by -whom a portion of the goods in question were afterwards invoiced to him from England. It appeared that Mallalieu, while in England, had been in the practice of forwarding goods to this person in New York, in the same manner as sold by him, and that they had been entered accordingly, as purchased goods. These goods were in part traced to the hands of the factor, by whom they had been disposed of in Philadelphia, in the previous year, 1838, In that year goods of this description, fairly imported, had not commanded more than a barely saving price, say 75 to 80 per cent, advance on the invoice. Yet these goods sent out by Mr. Mallalieu, had commanded an advance of 126 per cent, on the prices at which he purported to have sold them, accord- ing to the tenor of invoices in his own handwriting, on which they had been entered by his brother-in-law, the alleged pur- chaser. A variety of other circumstances combined to induce a belief that the persons invoicing and receiving these goods, were concerned in a combination to defraud the revenue, of which these invoices of pretended sales were the machinery. This belief became equal to a conviction, on a careful examina- tion, and comparison of the numerous invoices of all his importations. The numbers upon the goods were scattered in each invoice, in such confusion, as to indicate the reverse of any regular or progressive series. But, on arranging them in numerical succession, it appeared that the numbers on these goods, thus purporting to be bought at different times and places, from different persons, each of whom testified that he had no knowledge of any of the sales, other than those made by himself, formed parts of consecutive ranges of numbers, in which the goods of each party were connected in every possi- ble form with those of each of the others. This coincidence was strengthened by the circumstance, that the numbers were not in a single progressive range, but formed a succession of ranges, with gaps or intervals, sometimes of several hundreds or thousands, each man's invoices taking a new start in each new succession or range of numbers. As each witness had FEBRUARY SESSIONS, 1840. 353 The Cloth Caaea. sworn that he was himself the manufacturer, and had, himself, packed the goods for exportation, it was impossible to allege that a subsequent agent of the importer had placed the marks upon them ; and an almost equally decisive negative was found in the circumstance, that in very many instances, the numbers which formed the subject of consideration, were not upon the tickets attached to the goods alone, but even the list number, or original weaver's mark, in many instances, corresponded with the ticket number. In this, as in the other cases, notice had been given to produce the party's books and papers, which were as usual pertinaciously withheld. The defendant's wit- nesses having stated that a bill of exchange had been remitted for the amount of each invoice, a call was made for the thirds of exchange of each of the party's remittances to the alleged sellers, but none were produced. However painful the result, the conscientious convictions of the jury, compelled them to disbelieve the testimony of the witnesses under the commission. It is also to be observed, that the testimony produced under the commissions to Saddleworth, was apparently entitled to but little credit, because of the evident collusion and connexion between the witnesses. The words used, the forms of the answers, and even the method of evasion, being in, many cases identical. In some of the cases, there was this difference, that while the invoice prices of certain of the goods were greatly below the appraisements, those of others were not at all below, or so little below them, as scarcely to justify the counsel of the United States in insisting upon the prosecution. A proposal was made on behalf of these parties to withdraw all opposition to the condemnation of those goods of which the appraise- ments materially exceeded the invoice prices, if it could be un- derstood that the prosecution would not be pressed as to the others. The counsel of the United States replied, that if the books and accounts of the parties could be exhibited, and ap- peared to be fair, a nolle prosequi would be entered in each case as to the whole. The counsel of the claimants, not being 23 354 FEBKUARY SESSIONS, 1840. The Cloth Cases. authorised to exhibit the books and accounts, the counsel of the United States determined to insist upon the prosecution, as to all goods which were appraised more than ten per cent, above the invoice prices. On announcing this determination to the counsel of the claimants, they declined opposing any defence as to such goods, and submitting as to these to a verdict for the United States, contented themselves with asking a ver- dict of acquittal as to the others. In this manner a few pieces were acquitted, the Court, in every such instance, certifying that there was probable cause for the prosecution. In all the cases, except two, it was an undisputed fact, that the goods in controversy were still in the hands of the original importers, or their immediate agents. But two parties, namely, James Lynd, Jr. & Co., and Daniel Deal & Co., pleaded in bar of the informations, that they were purchasers of the goods claimed by them, respectively, for a valuable consideration, without any notice of the frauds of the importers. This plea was in neither case tenable in point of fact, as will appear presently. But, if true in fact, it could not avail the defen- dants in point of law. The plea in each case was, therefore, demurred to, and the demurrers were sustained by the Courtj on the authority of Wood v. The United States (16 Peters, 342), and previous decisions of the Supreme Court. Wood v. The United States arose upon an information similar to the informations in question. On page 362, the Court say that the 66th section of the act of 1799, « supposes an entry at the custom-house upon false invoices, with intent to evade the payment of the proper duties, and the forfeiture attaches im- mediately upon such an entry upon such invoices with such in- tent." And again, on page 365, that, under this section, « the forfeiture immediately attaches to every entry of goods falsely and fraudulently invoiced." In Gelston v. Hoyt (3 Wheaton, 811), upon a question under the act of 1794, imposing a for- feiture of a vessel fitted out and armed, to be employed in the service of a foreign state hostilely against another foreign state, It was held to be the doctrine of the English Courts, FEBRUARY SESSIONS, 1840. 355 The Cloth Cases. •which had been previously recognised and enforced by the Su- preme Court of the United States, that the forfeiture attached at the moment of the commission of the offence, and that the title of the party incurring it was completely divested from that moment. The previous decision referred to was U. S. v. Certain bags of coffee, 8 Cranch, 398, where it was decided that the forfeiture of goods for the violation of the non-inter- course Act of 1809, took place upon the commission of the offence, and avoided a subsequent sale to an innocent pur- chaser, although the duties had been paid, and the goods de- livered under a formal permit. Thus the language of the Court in 16 Peters, is traced back to a case in which the forfeiture was held to defeat the title of a purchaser. In de- livering judgment on the demurrer, the Court relied on these authorities, and cited English decisions to the same effect. But neither of the two cases in which this point arose, were instances of purchases, in the proper sense of the term. To constitute a party a purchaser, entitled as such to protection against what would be otherwise a better title, it is indispen- sable at law, and in equity, that the price or consideration should have been paid away and absolutely parted with before notice of the adverse claim. In one of the cases, James Lynd, Jr. & Co., the alleged purchasers, had bought the goods from William Blackburne & Co., on terms of credit which, as to about two-thirds in value of the sales, had not expired when the seizure was made, and, shortly before the seizure, had failed in business, indebted to William Blackburne & Co., the alleged sellers, in an amount greatly exceeding the price of the whole of the goods. The real parties interested were, therefore, William Blackburne & Co. and John Taylor, Jr., the importers, whose fraudulent practices in reference to the revenue, were not denied or deniable. The other case was that in which Daniel Deal & Co., the claimants, alleged them- selves to have been purchasers of the same John Taylor, Jr., and William Blackburne & Co. Here, however, no part of the price had been paid for any of the goods. 356 FEBKUAEY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. THE UNITED STATES OF AMERICA V. TWENTY-FIVE CASES OF CLOTHS, FIFTEEN CASES OF CASSIMBRES, ONE CASE OF CLOTHS AND CASSIMBRES, AND TWENTY-FOUR PIECES OP PILOT CLOTHS. JOHN TAYLOR, JR., AND BLACK- 1. An officer of the customs who has assisted in the seizure of goods for violation of the revenue laws, is a competent witness on a suit for the for- feiture of such goods ; the contingency that an action of trespass will be brought against him, by the claimants, being too remote to constitute a valid objection to his testimony. 2. The repeal of a, law by implication and construction of a subsequent statute, should be so clear as to leave no reasonable doubt that such was the intention of the Legislature. It should not be deduced by an ingenious course of argument, but should appear at once. 3. Where goods have been passed at a custom-house at the invoice valuation, and a suit is subsequently commenced against them, on the ground of their being fraudulently undervalued in the invoice, such undervaluation may be shown by evidence on the trial ; and the United States are not bound by the action of the revenue officers in assenting to such invoice valuation. 4. The counsel for the plaintiffs in a suit for a forfeiture having notified the claimants to produce a certain invoice, the latter declined so doing until the former would say whether they would take the invoice with, or without, a letter which was written on the same sheet, and offered it to the plaintiffs in either way they chose ; the plaintiffs declined making a choice without first seeing the letter, and the court ordered that the invoice should be produced, but that the letter should not be included in that order. 5. Where goods in the custody of the United States are being proceeded against by them, an irregularity in the seizure cannot avail the claimants in such suit. 6. The revenue laws of the United States are to be so construed as most effectually to accomplish the intention of the legislature in passing them; and do not fall within the rule that penal laws are to be construed strictly, in favor of those who may be prosecuted under them. 7. When a statute contains an absolute affirmative repeal of an antecedent statute, or part of it, then the expiration of the subsequent statute, by its own limitation, will not revive the repealed Act. FEBRUARY SESSIONS, 1840. 357 United States v. Twenty-five oases of cloths, &o. . The sixty-sixth section of the Act of 2d March, 1799 (1 Story's Laws, 631, 632), is in force. . Where, in a suit for the forfeiture of goods under the revenue laws, sufficient evidence has been given for the prosecution, to satisfy the Court that there was probable cause for the proceeding, the burthen of proof is thrown upon the claimants. This case came on to trial before Judge Hopkinson, and a special jury, on the 10th March, 1840 ; and was argued by Cadwalader, Dallas, and Read, for the plaintiifs, and Meredith, J. Sergeant, and Williams for the claimants. The information contained thirteen counts : — 1. That the goods were brought from a foreign port into some port or place in the United States, to the Attorney of the United States unknown, and were unladen and delivered from the vessel in which they had been brought, without any permit or special license from any collector or naval officer, or any other competent officer of the customs. 2. That the goods were brought into the port of New York, and there unladen and delivered without a permit. 3. That the goods were found concealed in a certain store, in the occupation of William Blackburne & Co., at the port of Philadelphia, the duties on said goods not having been paid or secured to be paid. 4. That the goods were entered at the port of New York, and on each entry an invoice produced and left with the col- lector, and that the said goods were not invoiced according to the actual cost at the place of exportation, but at less sums than such actual cost, with design to evade the duties there- upon, or some part thereof. 5. That the invoices and packages presented at New York, were made up with intent, by a false valuation, to defraud the revenue of the United States. 6. That the invoices presented at New York were made up with intent, by a false valuation, to evade and defraud the revenue of the United States. 358 FEBKUAEY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. 7. That all, and each of the packages contained in the en- tries, and each and every of the invoices, were made up with intent, by a false valuation, to evade and defraud the revenue. 8. That air and each of the invoices were made up with in- tent, by a false extension, to evade and defraud the revenue. 9. That all and each of the packages were made up with intent to evade and defraud the revenue. 10. As the fourth count, with the exception of the entry being laid at some port or place, to the Attorney of the United States unknown. 11. As the sixth count, with the same exception as in the tenth count. 12. As the seventh count, with the same exception as in the tenth count. 13. As the ninth count, with the same exception as in the tenth count. The information was subsequently amended : first, by insert- ing in the first three counts the name of George Wolf, the collector of the port of Philadelphia, as the party seizing the goods, and second, by inserting in the last four counts, the port of New York, for the port or place unknown. The counts were founded respectively, as follows : The first count on the 50th Section of the Act of 2d March, 1799; the second count on the 50th Section of the Act of 2d March, 1799 ; the third count on the 68th Section of the Act of 2d March, 1799 ; the fourth count on the 66th Section of the Act ' of 2d March, 1799 ; the fifth count on the 4th Section of the Act of 28th March, 1830, and on the 14th Section of the Act of 14th July, 1832 ; the sixth count on the 4th Section of the Act of 28th March, 1830 ; the seventh count on the 14th Sec- tion of the Act of 14th July, 1832 ; the eighth count on the 4th Section of the Act of 28th March, 1830; the ninth count on the 14th Section of the Act of 14th July, 1832 ; the tenth count on the 66th Section of the Act of 2d March, 1799 ; the eleventh count on the 4th Section of the Act of 28th March, FEBKUARY SESSIONS, 1840. 359 United States v. Twenty-five cases of cloths, &o. 1830 ; the twelfth count on the 14th Section of the Act of 14th July, 1832, and the thirteenth count on the same Section. On the 10th March, 1840, John J. Logue, being sworn, on his voire dire, said ; I was one of the persons who went to Mr. Blackburne's store, and assisted in making the seizure. Whereupon Williams objected to the witness, on the ground of interest, as he might relieve himself from his liability to an action of trespass, and obtain a certificate of probable cause, by means of his own evidence. Cadwalader and Dallas. Whether an action of trespass will be brought is a remote contingency ; it is a collateral matter ; the interest is not sufficiently direct. The witness is not interested in the case to the extent of a farthing. Act of 2d March, 1799, § 91 (1 Story's Laws, 655, 656) ; Schooner Thomas and Henry v. The U. S., 1 Brockenb. 368 ; Mc- Veaugh v. Goods, 1 Dall. 62. Sergeant, replied. Judge Hopkinson: The question is, could the verdict in this case be given in evidence either for or against the witness, in case an action of trespass be brought against him, by the claimants, for the seizure. First. Suppose the verdict should be for the claimants ; then in an action by them against the witness, that verdict clearly would be no evidence for him, nor would he desire to give it4n evidence ; neither would it be evidence on the part of the plaintifis in such action against the defendant. He is no party to this verdict, and has no direct interest in it ; he is to gain or lose nothing by it, and the verdict, which acquits them of the alleged forfeiture of their goods, does not prove a tres- pass by him. That must be made out by proof of the fact that he did seize the goods in the store of the claimants. It would then be for him to show his justification. In the case of the master sued for the negligence of his 360 FEBRUAEY SESSIONS, 1840. United States v. Twenty-fiye cases of cloths, &c. servant, and the Sheriff for the trespass of his deputy, the verdict against the master or the Sheriff, could not be given in evidence by either of them, in a suit against the servant or deputy, to prove either the negligence or the trespass, but merely to show the damage sustained. In this case,* the verdict for the claimants will simply restore their goods, and will not ascertain what damage they sustained by the seizure. There will be nothing in the issue between the claimants and the witness for which this verdict can be given in evidence for them, and against him. They must prove the damage, as well as the trespass complained of, by original and independent testimony. But, second, suppose the verdict here should be against the claimants, and they should bring suit for the trespass against the witness — a case so improbable that it can hardly be sup- posed — could the defendant avail himself of this verdict, as an answer to the action ? I apprehend not ; for the jury who should try that issue would not be bound by the opinion and conclusions of this jury upon the evidence. Whether the Act of Congress would or would not acquit the officer, in such a case, I do not say. But, be that as it may, the contingency of an action of trespass, in such circum- stances, is too improbable to constitute a vallid objection to the witness. Objection overruled. On the 16th March, 1840, John Siter was offered, on behalf of the plaintiffs, to prove that he had examined and appraised the goods at the instance of the government officers ; and that they were undervalued in the invoices. Mr. Siter was one of four private appraisers, that is, those not appointed as official appraisers, who were called upon to examine the goods. Meredith, objected to the evidence on the ground that the goods having been appraised by the official appraisers, at New York, who had adopted the value as stated in the invoice; having passed through the custom-house on and by that ap- FEBRUARY SESSIONS, 1840. . 361 United States v, Twenty-fiye cases of cloths, &c. praisement, according to which the duties had been estimated and paid ; and having been delivered to the owners upon the payment ; no evidence could be received, on the part of the plaintiffs, to disclaim or contradict that appraisement, or to show that the goods were of a greater or different value; but that that appraisement was conclusive and final against the plaintiffs in this or any other proceeding. Tappan v. The U. S., 2 Mason, 393, 404 ; U. S. v. One case, &c., 1 Paine, 400 ; U. S. v. Eighty-four boxes, &c., T Pet. 453 ; TJ. S. v. The Burdett, 9 Pet. 682; U. S. v. Tappan, 11 Wheat. 419. Cadwalader, for plaintiffs. The effect of the principle contended for by the claimants, would be to repeal and expunge a vast body of the laws of the United States. An attempt to defraud would be punishable, but if the attempt should be successful, the perpetrator and his goods would go free. Our ground is threefold. First, that the appraisement of all goods is not necessary, and did not take place in this case. Second, that an examination and appraise- ment is not conclusive upon the United States as to a claim- ant, in a case of forfeiture. Third, that, no matter how the forms of the law may have been complied with, if there is fraud, we are entitled to go behind those forms, and to con- sider them as nullities, so far as the question of fraud is con- cerned. Wilson V. Saunderson, 1 Bos. & Pull. 269 ; Blewitt v. Hill, 13 East, 13; Bosworth v. Maxwell, Hardin, 208; Reniger v. Fogossa, Plowd. 10 ; Partridge v. Strange, Plowd. 82; The Two Friends, 1 Gall. 118, 127, 129; U. S. v. The Union, 4 Cranch, 217 ; Tappan v. The U. S., 2 Mason, 406 ; U. S. V. A Package of Lace, &c., Gilp. 841 ; U. S. v. Sixteen packages, 2 Mason, 52; U. S. v. Riddle, 5 Cranch, 811; U, S. v. Twenty-eight Packages, &c., Gilp. 825 ; U. S. v. One hundred and twelve casks, &c., 8 Pet. 277 ; U. S. v. Phelps, 8 Pet. 700 ; Ilxp. Davenport, 6 Pet. 661 ; Locke v. The U. S., 7 Cranch, 839, 345 ; Sixty pipes of Brandy, 10 Wheat. 421. Whatever is done in fraud of the law is done in violation of it. 362 . FEBRUAKY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. Lee V. Lee, 8 Pet. 44, 50 ; The San Pedro, 2 Wheat. 140 ; The William King, 2 Wheat. 148, 153 ; U. S. t. Hathaway, 3 Mason, 324 ; U. S. v. Lyman, 1 Mason, 482. Williams, for claimants, cited U. S. t. Three hundred and fifty chests, &c., 12 Wheat. 490; TJ. S. v. A Package of Lace, Gilp. 343. Dallas, for plaintiffs. The forfeiture attaches at the moment of committing the offence, when the entry was made on the fraudulent in- voices, and no subsequent act could purge the fraud and for- feiture, except by the consent of the United States. U. S. V. Breed, 1 Sumn. 160 ; Gelston v. Hoyt, 3 Wheat. 311, 316 ; U. S. V. Certain bags of coffee, 8 Cranch, 398 ; U. S. v. Six packages, &c., 6 Wheat. 523 ; Tappan v. The U. S., 2 Mason, 397. Sergeant, for claimants, cited against the evidence, U. S. V. Fourteen Packages, Gilp. 240 ; Gelston v. Hoyt, 3 Wheat. 311 ; U. S. v. Breed, 1 Sumn. 160 ; Tappan v. The U. S., 2 Mason, 393 ; U. S. v. One case, &c., 1 Paine, 400 ; TJ. S. V. A Package of Lace, Gilp. 346, 339. On the 21st March, 1840, Judge Hopkinson delivered the following opinion : — An invoice was produced, at the custom-house of New York on the importation of the goods now in question, upon and by which an entry was made. It appears, by a writing across the face of this invoice, that it was received and adopted by the officers of the revenue, as a true invoice, showing the actual value or cost of the goods contained in it. Whether an exami- nation and appraisement was made, or not, does not appear. The duties were estimated by that invoice, and, upon paying or securing them, the goods were delivered to the owner. A prosecution has been commenced against these goods; they have been seized, and are alleged to be forfeited on the FEBKUAEY SESSIONS, 1840. 363 United States v. Twenty-five cases of cloths, &c. ground, amongst others, that this was a false invoice, and did not exhibit the true and actual prices or value of the goods ; a witness is now offered to testify that the goods are falsely charged in the invoice, and that they are actually worth, or actually cost, more than the prices of the invoice. . It is objected, ttat this evidence cannot be received ; that the in- voice, or rather the value of the goods there set forth, having, been adopted by the officers of the government, appointed for that purpose, is conclusive upon the United States, and cannot now be disclaimed or contradicted. There is written across the face of this invoice this memo- randum — " Passed, case 178, Woollens and Cassimeres," which is considered, for the purposes of the argument, as a certifi- cate of the appraisers, that the goods were truly valued in their opinion in and by the invoice. This memorandum being part of the same paper which was given in evidence, it was read and received, although it is not quite intelligible in what it means or by whom it is signed. In other circumstances, I presume, a certificate, however formal, could not be received without being here verified by the appraisers on oath. Several subjects, ranging over the whole case, have been discussed in the argument, which I shall forbear to notice, because, in the view I have of the question, it is not necessary, and therefore it would be improper and premature, to give any opinion concerning them : such as the legality of the seizure ; whether any appraisement has actually been made of these goods, or such an one as the law requires ; whether all or any part of the sixty-sixth section of the Act of 1799 has been repealed, involving the question, whether a forfeiture is incurred by a false invoice, — a question constituting a substan- tive charge in the libel, and not to be disposed of on an incidental question of evidence; also, whether the proceeding at the custom-house, and the delivery of the goods to the claimants, is final and conclusive in relation to the estimate of duties. The inquiry now is, whether those proceedings are final and conclusive against the United States on a seizure and 364 FBBRUAKY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. prosecution of the goods on all or any of the charges laid against them in the libel ; whether, if the ascertainment of the true value of these goods is necessary to support the charges that they have been fraudulently imported, entered, and passed through the custom-house at an under value, by false entries, false invoices, or other fraudulent contrivances, it is not com-^ petent for the United States to give evidence of the true value of the goods ; or whether they are estopped from doing so, by the examination, appraisement, and delivery of them by the officers of the customs. The framers of the Revenue Laws of the United States have been met by two difficulties, which have given them much embarrassment and trouble. The first was to devise a mode by which the true cost or value of imported goods, which were subject to pay a duty according to their value, could be ascer- tained. The second was to detect and punish frauds. The objects are distinct, and the means provided to accomplish them are equally so. Various modes of examination and appraise- ment have, from time to time, been adopted, as experience discovered the defects of those in use. The different enact- ments on this subject have been traced from the first to the last by the counsel in this argument, and it is not necessary for me to retrace them, but in a very general way. It is enough to say, that they all had for their object the ascertain- ment of the duties that were payable on the goods. Such was obviously the intention of the fifty-second section of the Act ■ of 1799. The sixty-sixth section of the same Act forfeits goods not invoiced according to their actual cost, and provides, that when the collector suspects that such is the case, he may take the goods and retain them until their value is ascertained by two respectable merchants, and until the duties are paid according to such valuation, the object being a just calculation of the duties. There is an express provision that in case of a prosecution for a forfeiture, such appraisement shall not be construed to exclude other proof upon the trial. It is clear FEBRUAEY SESSIONS, 1840. 365 United States v. Twenty-five cases of cloths, &c. to me that the appraisement made under this Act has relation only to the duties, and not to the forfeiture. By the first section of the Act of 1818, which is an Act for the better collection of duties, the owner of goods subject to an ad valorem duty, is required to produce the original invoice to the collector. The manner of ascertaining the ad valorem duty is pointed out. The ninth section provides for the appointment of appraisers by the President, all having refer- ence only to the estimate of the duties. By the eleventh section of this Act, when the collector suspects that goods have been invoiced below their true value, he is to have them appraised in the manner described in the ninth section, and if they are found to be undervalued, an addition is laid upon them of 50 per cent., on which amount the duties are to be estimated. The twelfth section is of the same import. Every provision in this Act, respecting appraisement, and the effect or evidence of such appraisement, relates to the esti- mation of duties, and not to a prosecution for a forfeiture. In conformity with this view, the question raised in Tappan V. The U. S., 2 Mason, 393, was only, whether the appraise- ment made under the Act of 1818 is conclusive of the value of the goods, so far as respects the ascertainment of duties. The Act of 1828, Section 8, commences by declaring that the subject is the estimation of duties to be imposed upon goods imported into the United States ; and, in cases of ad valorem duties, the collector is to have the actual value appraised, esti- mated, and ascertained, and the number of yards, parcels, and quantities, and the actual value of every of them. The duty of the appraisers is then detailed. The whole proceeding re- fers to the collection and payment of duties, and the appraise- ment is made for no other purpose, nor is it applied to any other object. The ninth section is equally explicit on this subject, and the invoice is expressly referred to, upon which the additional charge is to be made. The Act of 1830, section second, pro- vides for the appointment of appraisers. Section fourth directs 366 PEBEUAKY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. the collectors to cause at least one package in every invoice, and one at least in every twenty, to be opened and examined, and if not found to correspond with the invoice, or if found to be falsely charged, all the goods in the entry must be inspected. Then is the direction to have an appraisement made, which is applied only to goods subject to an ad valorem duty, and if it shall be found that the invoice was made up with intent to evade or defraud the revenue, the goods are forfeited, &c. Act of 1832, Section seventh. In cases where the duty imposed upon goods is to be estimated by the value of the square yard, or any other quantity, and in all cases of an ad valorem duty on any goods, the collector is directed to cause the actual value to be appraised, estimated, and ascertained ; and the number of such yards, parcels or quantities, and such actual value of every of them, as the case may require. The duties of the appraisers are then detailed, in order to estimate the true value, any invoice or affidavit to the contrary not- withstanding. Section eighth : the appraisers are empowered to call before them, and examine upon oath, any owner, im- porter, or consignee, touching any material matter. Section fourteenth : if upon opening any package, the goods shall be found not to correspond with th& entry, or if the package con- tain any article not entered, such article shall be forfeited ; or if the package be made up with intent to evade or defraud the revenue, the package shall be forfeited. Such are the legislative enactments respecting the collec- tion of the revenue, which have been thought to apply to the question before, the Court. That there is no direct positive rule by which the testimony offered should be rejected or ad- mitted ; that there is no declaration that the appraisement, if one was made in the case, or the adoption of the invoice prices by the officers of the customs, shall be conclusive of the value of the goods, against the United States, in the proceeding and trial now pending, cannot be questioned ; and the inquiry is,— whether such an intention can be clearly deduced from these enactments, or any of them. PEBRUAKY SESSIONS, 1840. 367 United States v. Twenty-five oases of cloths, &o. It is proper, in our inquiry into the intention of the Legis- lature as to the effect of these appraisements, to remark that, in the Act of 1799, there is an express proviso, that, in case of a prosecution for a forfeiture, such appraisement shall not be construed to exclude other proof upon the trial. No dis- tinction is here made between the United States and the claimant, but the provision is general, that the appraisement shall not exclude other evidence. There is but one other ex- press enactment upon the force or effect of an appraisement. This is found in the eighth section of the Act of 1832, giving power to the appraisers to call before them, and examine on oath, any owner, importer, &c. "And if any person so called shall fail to attend, or shall decline to answer, &c., he shall pay a fine of fifty dollars, and if he be the owner, importer, &c., the appraisement shall be final and conclusive, any Act of Congress to the contrary notwithstanding." So far as any inference to our purpose can be drawn from these enactments, it is, that the appraisement was not intended to shut out other evidence on a prosecution for fraud and forfeit- ure. In the latter Act the appraisement is made conclusive, as a penalty for the neglect or contumacy of the owner. The w^ords " any Act of Congress to the contrary notwithstand- ing," seem to imply that it was supposed that preceding Acts would not have made the appraisement final and conclu- sive without this declaration. There being nothing in any Act of Congress which declares that, in a case like the present, the appraisement shall be con- clusive evidence of the cost and value of the goods, the Coun- sel for the claimants have endeavored to support their objec- tion by reasoning from the general character and provisions of the Acts of Congress, on the subject of the revenue. The argument most relied upon is that which is drawn from the Act of 1832. It is argued that, inasmuch as the appraisers, by that Act, may make their appraisement without any regard to the invoice, we must therefore, also, put the invoice aside on the question of value, and take the appraisement as the only evidence of it. I cannot see the force or congruity of this 368 PEBEUAEY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. argument. The object of the appraisers was to estimate and ascertain the actual value or cost of the goods, and this they might well do by their own skill and knowledge, and other means of information in their power, without any reference to or reliance upon the invoice or affidavit of the owner. Our inquiry is, whether that invoice, and that oath, are true or false, honest or fraudulent ; and this we cannot possibly answer, without having that invoice before us, nor without testing its truth by other evidence than itself; by any evidence by which its truth or falsehood can be made to appear. The appraisers could perform their duty and reach their object with- out the invoice, but we cannot do so, nor even move a step towards it. The inquiry and proof are equally open to both parties. In the cases tried in this Court, the claimants have been let into all the proof they could produce, to overrule the opinion of the appraisers. Commissions have gone abroad to collect testimony for them, and the appraisers were examined and cross-examined as to the means or standards by which they made their estimates. It was the trial of an issue, fraud or no fraud, and the whole question was open to any legal evidence on the one side and the other. The broad and increased power given to the appraisers by the Act of 1832, is far from being a reason why they should decide without appeal, without check or control, especially in a new proceeding before a Court of law, which in fact will have nothing to try if the doctrines of the claimants are sound. With an invoice false and fraudulent on its face, with a dozen witnesses ready to prove it to be so, it will be a sufficient protection to the offender to say, Here is the certificate of the appraisers, and by that the invoice proves its own truth ; I have satisfied them, or I have deceived them, I need not say how, and I put the Court and the law at defiance. The revenue will be dependent upon the integrity and intelligence of the appraisers ; they must be too honest to be tampered with, and too intelligent to be deceived. We may have such men, but it will be hard to find them. Our inquiry has no reference to the amount of duties assessed or paid for these / FEBRUARY SESSIONS, 1840. 369 United States v. Twenty-five oases of oloths, &c. goods. It is nothing to this issue, whether they were too much or too little. There is no attempt to disturb or revise them. The object here is to ascertain whether a certain paper, called an invoice, which was produced at the custom-house of New York on the entry of the goods, is true or false. Suppose the duties had been calculated on a valuation made by the appraisers under the Act of 1832, without regarding or looking at the invoice, would it be a less offence against the revenue for the importer to have exhibited an invoice containing a false valua- tion of the goods, with intent to defraud or evade the duties ? Can we try or decide whether it was a false valuation, without information and proof of the true and real value ? It is not essential to this offence that the invoice should be used by the appraisers in making their estimate, nor that it was one of the means by which they were deceived. To invoice the goods below their actual value and cost, and to enter them by that invoice, with design to evade the duties, is, per se, an offence which forfeits them, whether the invoice was afterwards instru- mental in the estimation of the duties for that purpose or not. The evidence must follow the issue and must depend upon the fact to be proved, when the question is, whether, when an im- porter has paid the duties legally chargeable upon his goods, it may be enough for him to say, I have paid all that the officers of the government, appointed to ascertain them, declared to be due, and the question should rest. But when the inquiry is, whether he has been guilty of a specific fraud or not, it would be extraordinary if the acts or opinions of men, in reference to another subject, should be conclusive, either for his condemna- tion or acquittal. It cannot be doubted that to enter goods with a false invoice, with intent to evade or defraud the revenue, subjects them to forfeiture ; this is declared by the sixty-sixth section of the Act of 1799, which for the present I consider to be in force, and one of the counts of this information is founded on that section. It is said to be repealed, but, as I have remarked, I shall not, on an incidental question of evidence, decide that 24 370 FEBRUAKY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &o. question. If it be so, the claimants ■will have the benefit of it, after the evidence is heard. If that count be good, it must be competent to the District Attorney to support it by proof of the allegations and facts contained in it. But, can it be proved as a matter of fact, that the invoice was false, that the value and prices of the goods, as therein exhibited, are false, unless, in the first place, the invoice be laid before the jury, that they may see what are the cost and value therein charged, and then that proof, common law proof, for the statute prescribes none, be received to show that the cost and value as given in the invoice are not true ? On the subject of the repeal of this section, which is justly considered an important inquiry, it may not be amiss to suggest, that the repeal of a law, by implication and construction of a subsequent law, should be so clear as to leave no reasonable doubt that such was the intention of the legislature ; it should be as certain as an express repeal. It should not be deduced by an ingenious course of argument; but should appear at once. It can seldom be satisfactory to arrive at this conclusion by taking a phrase from one section of the subsequent Act and putting it into another section, where the legislature had not put it. The general presumption is that, if a repeal was intended, it would have been expressly declared ; and such is the usual practice of legislation. If the law-makers have not said so, the intention to do so must be clearly shown from what they have said. In this case the sixty-sixth section of the Act of 1799 speaks of an invoice not made up according to the actual cost of the goods, with design to evade the duties, and a forfeiture is inflicted. By the eleventh section of the Act of 1818 an addition of fifty per cent is to be made to the invoice if the appraisement exceed it by twenty-five per cent, making no dis- tinction between a fraudulent intent and an innocent error. These two laws therefore provide for different cases, and are entirely consistent. To meet this view and show that the invoice spoken of in this eleventh section, meant a fraudulent invoice, words are carried from another section of the Act to the 11th FEBEUAEY SESSIONS, 1840. 371 United States v. Twenty-five cases of cloths, &c. section ; but we do not find them there. The argument how- ever may be a good one : but I am unwilling to adopt it on the question now before the Court, although it may serve the claim- ants hereafter. It will then be more carefully examined. By the fourteenth section of the Act of 1832, if, on opening the package : 1. The goods shall be found not to correspond with the entry ; 2. To contain any article not entered ; such article is forfeited ; 3. If the package be made up with intent to defraud or evade the revenue, the package is forfeited. There are counts in the information on each of these charges or offences. The last is a very broad charge : " if the pack- age is made up with intent to defraud or evade the revenue." It is obvious that the proof of this charge can hardly be found in any single fact, or by direct evidence. It must be effected by a combination of facts and circumstances. The machinery musi have several parts to accomplish the end : a false invoice may be — perhaps I may say — must be a part of that machi- nery; and therefore to prove this offence of making up a package to defraud the revenue, it may be essential to prove that the invoice which came with the goods, and by which they were entered at the custom-house, was false and fraudulent, as a distinct and substantive fact, tending to support the alle- gation, and the issue upon it. If we should admit that where the direct issue is upon the invoice, or the question was as to the estimate of duties, the appraisement agreeing with it might be paramount and conclusive evidence of its truth, it does not follow that it would be so, when the issue is whether a certain package was made up to defraud the revenue, and the invoice is brought in incidentally, as a circumstance tending to show the fraudulent intention or design with which the package was made up. I have avoided giving any opinion on many of the topics and questions brought into the argument, because, with my view of the direct question, it was unnecessary, and would have carried me into matters hereafter to be considered, and upon which it is proper to keep myself free. Unless the ob- 372 FEBKUAEY SESSIONS, 1840. TJnited States v. Twenty-five oases of cloths, &c. jection to the evidence were clearly sustained, I should admit it, because it is incumbent on the party taking an objection to the competency of testimony to support it, and because an error in receiving it will be attended with less inconvenience, than an error in rejecting it. It may turn out, after it is heard, not to affect materially the case of the claimants, ac- cording as they shall make it out. The objection is overruled. On the 4th April, 1840, Cadwaladee, for plaintiffs, moved for an order on the claimants to produce a certain invoice, de- scribed in a notice which had been served on the claimants' counsel ; and cited, in support of his motion, Withers v. Gil- lespy, 7 Serg. & Kaw. 10 ; Towers v. Hagner, 3 "Wharton, 59 ; Act of 24 Sept. 1789, § 15, 1 Story's Laws, 59 ; Carroll v. Peake, 1 Pet. 22, 23. The counsel for the claimants admitted that they had the paper in their hands ready to be delivered, when the counsel for the plaintiffs would say whether they would take it with a letter written upon the same sheet, or without the letter, and that they might have it in either way at their option. The counsel for the plaintiffs replied, that they wanted the invoice, and that they could not say whether the letter annexed to it was within their call or not, until they saw what it was. Ordered by the Court, that the counsel for the claimants produce the invoice described in the notice, but that this order does not extend to the letter annexed to the invoice. The argument of the case, on the evidence, commenced on the 15th April, 1840, was carried on by Read, District At- torney, for the plaintiffs, Meredith and Sergeant, for the claimants, and concluded by Dallas, for the plaintiffs. On the 4th May, 1840, Judge Hopkinson delivered the following charge to the jury : FEBKUAKY SESSIONS, 1840. 373 United States v. Twenty-five oases of cloths, &o. It is within one day of eight weeks since you were em- panelled and sworn to try this cause. I have no knowledge of any trial in a court of justice of this duration. Perhaps the time that has been consumed is not more than its importance and difficulties required. On the one side, it is alleged that the object of the prosecution is not only to punish the parti- cular fraud complsbined of, but to expose and break up an extensive combination, in a foreign country, whose artifices and operations are preying upon our revenue, crippling our domestic industry, and driving our honest traders out of the market. On the other side, it is certainly true that the cha- racter and property of a citizen are deeply involved in the result of the investigation. Our duty only now remains to be performed. We have had from the counsel all the assistance that learning and labor could produce. We must endeavor to use it carefully and conscientiously. In doing this you must keep in mind, that you are not examining the truth or falsehood of a single fact or allegation. You are investigating a charge of fraud of a complicated character, and such an inquiry calls for your most vigilant attention and care, that you be not deceived. It is of the essence of fraud to be secret in concerting its designs and wary in executing them, to mislead by false appearances, to put on an honest face and front, and to preserve all the regularity and forms of a lawful proceeding. But the danger of being deceived must not make you too suspicious, nor must you suffer your fears to change the true color of things. You have observed that in the course of the trial numerous questions of law, on the evidence, have been discussed and decided. One of them, particularly, was of vital importance to the case, and was argued most elaborately. You will under- stand that for any errors I may have committed in these decisions the disappointed party has a remedy, and also that for any errors I may fall into in my charge to you he has the same redress. It will be my duty to give you my opinion and instructions on matters of law, clearly and explicitly, not only 374 FEBKUAKY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. that you may not misapprehend them, but that the parties may have the full benefit of their right of exception. As to the evidence and facts of the case, I shall no farther interfere with your rights over them, than by reminding you of such as appear to me to demand your particular attention, with such remarks as may afford you some aid in your deliberations upon them. Before we come to the consideration of the issues presented by the pleadings, we must dispose of some preliminary objec- tions which are asserted, on the part of the claimants, to be destructive of the whole proceeding. It is said that the seizure of these goods was irregular, unlawful, and a violation of the rights of the claimants, and that this prosecution being founded on that seizure, is vitiated by it. And how is this pretension maintained ? It is contended that the affidavit on which the warrant of seizure was issued was illegal, that it does not contain charges and specifications to justify the war- rant, and that the warrant is equally defective. I see no ground whatever for the objection. The whole proceeding is substantially in conformity with the directions of the Act of Congress. As to a particular description of the goods, that was obviously impossible, and would be so in nine cases out of ten of seizures for similar offences. So as to the place. These goods were in a room which was a part of No. 24, to which there was no access but by the door numbered on the street 24. It was truly a part of the store of the Messrs. Black- burne, and not of Mr. Worrell, who had no means of communi- cation with it. But all this, I hold to be entirely immaterial to the issue now trying. These goods are now in the possession of the officers of the United States— and they are claimed as- the property of the United States by reason of a fraud which for- feited them. The irregularity of the seizure, even if there was an irregularity, cannot avail the claimants on this trial: it is no defence for them against the charge of fraud, or the claim of property in these goods by the United States. If FEBRUAKY SESSIONS, 1840. 375 United States v. Twenty-five cases of cloths, &o. the officers were guilty of a trespass, they must answer for it, if the claimants shall find it expedient to hring their action for it. If they might have forcibly resisted the execution of this warrant, and had done so, then that question would have been tried in another proceeding. But here we have nothing to do with it. Let me explain this doctrine, if it can need any ex- planation, by a familiar case. It is suspected that stolen goods are concealed in a particular place, — a warrant is issued to search for and seize them, — a great quantity is found concealed, — the person in whose custody they are found is indicted for receiving them. Can it be allowed or believed that he might put his defence on the allegation that there was some in- formality in the warrant of seizure or the manner of executing it ? And that therefore the indictment and all the subsequent proceedings were illegal and void? And would it not be thought strange if the accused, in such a predicament, and to support such a defence, were to make a clamor about his liberty, and the invasion of his rights, and the sanctity of his home, by the harpies of the law? These goods are now held, not under the warrant by which they were taken, or by the seizure made by virtue of that warrant, but by process issued from this Court by the authority of which they were at- tached, by the marshal of the Court, and are now in his custody. Another, much more important objection, is presented to our further proceeding in this prosecution, and which, were it well sustained, would have terminated this trial almost at its commencement. It is the question already mentioned, and. which was so fully argued on a question of evidence, and has been again urged upon the Court. I shall give my opinion now, as I did then, so that the claimants may have their exception to it, either on the ground of an improper admission of evidence, or of an error in my instructions to you. I shall speak of it now briefly, having given my reasons at large on the former occasion. It is contended that as these goods were appraised at the custom-house in New York at the invoice 376 FEBRUARY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. prices, that as they were passed through that custom-house on that appraisement, paid the duties according to that appraise- ment, and were thereupon delivered to the importers, they are now exempted from all further inquiry into their cost or value, not only in relation to the amount of duties legally chargeable on them, but on a prosecution for fraud in making up those invoices, and on any or . every other account ; that the very fraud by which it is alleged in this prosecution the passing of the goods through the custom-house was obtained, that is, the false invoices, cannot now be inquired into. I can by no means assent to this doctrine, which in my judgment would be to offer a premium for successful fraud, and punishment only to the unskilful. I adhere, on reflection, to the opinion I gave on the trial. I will add but a remark. It is said these officers are the appointed agents of the government, and that the government is bound by their acts. The answer is plain. The government does not claim any right or privilege for itself that every citizen does not possess. Suppose one of you should appoint an agent to sell your house or goods, with even more clear and full powers than those given to the appraisers by the Acts of Congress. Your agent makes a sale, but it is afterwards proved that he has been grossly defrauded by the purchaser, by false representations, by the suppression of the truth, by that which constitutes fraud in the law. Would you suppose you are bound by such a transaction; that the cheat is safe and may retain your property only by saying that it was delivered to him by your agent ? It has been insisted on the part of the claimants, that our revenue laws, at least those we have been considering, are penal laws, highly penal, and therefore are to receive a strict con- struction in favor of those who may be prosecuted under them. It does not appear to me that this point is of much importance in the present case, but I have been asked for an opinion upon it. It must not be understood that every law which imposes a penalty, is therefore, Jegally speaking, a penal law, that is, a law which is to be construed with great strictness in favor of FEBRUARY SESSIONS, 1840. 377 United States v. Twenty-five cases of cloths, &c. the defendant. Laws enacted for the prevention of fraud, for the suppression of a public wrong, or to effect a public good, are not in the strict sense penal acts, although they may inflict a penalty for violating them. It is in this light I view the revenue laws, and I would construe them so as most effectually to accomplish the intention of the legislature in passing them. These secondary matters being disposed of, we come to the examination of the matters in issue between the United States and the claimants. They are distinctly set forth in the plead- ings. The information, or libel, states the causes for which a forfeiture of these goods is claimed, and the claims and answers, set out the defence on the part of the claimants. To these documents your attention will be directed, for it is in them you will find the allegations on which you are to pass by your verdict. The information contains thirteen counts, as they are called, but in fact many of them are but a repetition of the same charge presented in a different form, so as to meet the evi- dence as it might come out on the trial. I will briefly recur to them. The first and second counts of the information charge that the goods were brought into some port of the United States, and were there unladened and delivered without a permit. The first states that the port is unknown, the second, that it was the port of New York. These counts are not supported by the evidence. It appears that the goods were landed and delivered from the vessel in which they were imported, under a custom-house order, and by the custom-house oflicers, and were afterwards delivered not from the vessel, but from the stores, to the claimant, on what are called land permits. The third count charges that the goods were found concealed, the duties thereon not having been paid. This count is founded on the sixty-eighth section of the Law of 1799, which gives authority to every collector, naval ofiScer, &c., if they have cause to suspect a concealment of goods, &o., 378 FEBKUARY SESSIONS, 1840. United States v. Twenty-fire cases of cloths, &c. subject to duty, in any particular dwelling-house, store, &c., having obtained a warrant from a justice of the peace, to enter such house, store, &c., and there to search for such goods, " and if any shall be found to seize and secure the same for trial, and all such goods, wares, i&c, on which the duties shall not have been paid or secured to be paid, shall be forfeited." Two questions are to be considered under this law. 1. Were the goods concealed in the place where they were found ? This is a matter of fact which you will decide on a careful review of the evidence. It appears that the claimant, Mr. Blackburne, rented a store in Church Alley, No. 24, in this city. That the adjoining store. No. 26, was rented by Mr. Worrell, and that the lower, or ground story, was occupied by him. The second story or floor of this store, which ex- tended over the whole building, was in the occupancy of Mr. Blackburne, and the access to it was by a large opening or doorway from Mr. Blackburne's second story into it. This door- way was usually kept open, and was so in July and August last, and up to the 20th of August, on the day when the seizure was made. On the morning of that day the porter of Mr. Blackburne saw in a newspaper, or was informed by somebody, that a seizure had been made of Mr. Broadbent's goods. Whether the Messrs. Blackburne had the same information or not is not in direct evidence, but you will judge from all the circumstances whether they knew it or not. On the same morning, the hour is not precisely fixed, but at about eight or nine o'clock, this doorway or passage is com- pletely blocked up and concealed by boxes, &e., so that persons going into Mr. Blackburne's second story, saw nothing by which they could discover or suppose there was any communication between the two rooms. The officers on their first visit did not discover it, and went away ; but on getting further information, they returned, and by introducing a stick between the boxes, they found where the passage was, removed the obstructions which concealed it, and FEBEUAKY SESSIONS, 1840. 379 United States v. Twenty-fiye oases of cloths, &c. went into the adjoining room. It was entirely dark, although Mr. Blackburne's porter says he had opened one of the windows that morning. In this room the goods in question were found, some in their cases, some lying on them. This is the evidence of a designed concealment, from the situation in which the goods were found. Are these circumstances of suspicion explained or confirmed by the conduct of Mr. Blackburne ? When the officers came to his store he was there. They told him their business ; he said they might search. He said he had no goods in his possession but what were imported through the port of Philadelphia. The officers examined the cloths and cassimeres in the lower story, and then went up stairs of store No. 24. After looking at some cloths and cassimeres there, one of them asked Mr. Blackburne, if they were all the cloths in his possession. He answered, Yes, you have seen all. He was asked if he had no other store in the neighborhood. He answered, No, you have seen all that we have. The officers did not, on this visit, discover the passage into the next store ; they returned in the afternoon. One of them said to Mr. 0. Blackburne, that they wished to see the second story over Mr. Worrell's store. He replied, You have seen all the rooms that we have. The officers went up stairs and searched for the entrance into the next room. He denied that there was any access to that room. They proceeded in their search to discover one, and at last he said. The entrance is behind those boxes. The officers were then thrusting a stick between the boxes. In the next room the goods were found, and Mr. Blackburne said he was the owner of them. In this short conversation we have five absolute, undoubted false as- sertions. No equivocation, no evasion of the questions, but clear and explicit denials of the truth. Counsel say he had a right to refuse to answer, but did he ? 2. Such is the question of fact on this part of the case. Such the evidence from which you are to decide whether these goods were concealed or not, in the ordinary acceptance or meaning of the word, and it is in relation to that question I 380 FEBKUAKY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. am now adverting to this evidence. What bearing it may have on another part of the case, will be seen. There is another question on this part of the case, which is partly a question of fact and partly of law. It is not enough that the goods were concealed. They might be so for an object and purpose with which neither the United States nor their revenue laws have anything to do ; in which they have no con- cern. To make this concealment the ground of a forfeiture, the goods, first, must be subject to duty ; of this there is no question in this case ; second, the duties must not have been paid or secured to be paid. The concealment, therefore, spoken of in the Act of Congress, must have had relation to these ob- jects. In 12 Wheat. 493 (U. S. v. Three hundred and fifty chests, &c.). Judge Washington, delivering the opinion of the Supreme Court, says, " The term concealed, used in this sec- tion, is one of plain interpretation, and obviously applies to articles intended to be secreted and withdrawn from public view, on account of their being so subject to duties, or from some fraudulent motive." It has been contended for the claimants, that the concealment relates only to smuggled goods. I do not think so ; it relates to any goods subject to duties, and on which the duties have not been paid. This natural and satisfactory interpretation of the law, brings us to another question, or the meaning of the Act, which is a question of law. Were the duties on these goods paid in the meaning of the words in this section ? They had been passed at the custom-house of New York, and the duties there assessed upon them had been paid. Does this satisfy the provision of this sixty-eighth section of the Act of 1799 ? In my view of this question, it brings us to the main subject of inquiry in the case, that is, were these goods invoiced at their fair and true cost and value ? For the duties were paid according to the value and prices in the invoice. If those prices were the real cost of the goods, then the whole duties due upon them have been paid, and the concealment was not such an one as is de- scribed in the Act. But it is contended, that as to the amount FEBEUAKY SESSIONS, 1840. 381 United States v. Twenty-five oases of cloths, &c. of duties payable on these goods, the assessment made at the custom-house is conclusive, and that therefore the concealment of these goods can have no connexion with the duties. In my opinion this propositioii is too broad, and cannot be maintained by the true construction of the Act. Without deciding . what our case does not call upon me to decide, that is, whether the appraisement made at the custom-house is conclusive upon the question of duties, so as to bar any action for an additional amount if that appraisement should afterwards be found to be too low, and where the error was one of the appraisers, with- out the use of any contrivance, fraud, or deception by which they were misled on the part of the owner of the goods, I am of opinion that an appraisement procured by such fraud and contrivances will be no protection to him by whom they were perpetrated. It is a universal maxim of law, of equity, of morals, that no man shall be permitted to gain an advantage by his own fraud. When, therefore, the sixty-eighth section of the Act of 1799 declares that " all such goods, wares, and merchandise, on which the duties shall not have been paid or secured to be paid, shall be forfeited," it means the duties which were justly and legally chargeable upon the goods, and' not a part of them, and that if the owner of the goods has ob- tained possession of them or passed them through the custom- house by paying a less amount of duties than were justly chargeable upon them, and has obtained this advantage by any fraud or contrivance upon the officers of the government, it will not avail him ; and that if his goods are found to be con- cealed within the meaning of the Act, he cannot avoid the for- feiture by alleging and showing that he had paid the duties required of him at the custom-house. You will further observe that the Supreme Court, in the case I have cited, have decided that the concealment spoken of in the Act applies to articles intended to be secreted or withdrawn from public view, on account of their being so sub- ject to duties, "or from some fraudulent motive." I under- stand these general words, " or from some fraudulent motive," 382 FEBKUAKY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. to be restricted to a fraudulent motive connected with the duties or revenue laws of the United States. If, then, you shall believe that these goods were concealed, and that they were concealed on account of their being subject to duties, or from some fraudulent motive, such as I have described, they are forfeited by the provision of the sixty-eighth section of the Act of 1799. The fourth and tenth counts of the information bring up the question whether the sixty-sixth section of the Act of 1799 has been repealed. This repeal has been contended for on the part of the claim- ants by virtue of several subsequent Acts of Congress. The part of the sixty-sixth section important to our present inquiry, enacts, " that if any goods, wares, or merchandise, of which entry shall have been made in the oflSce of a collector, shall not be invoiced according to the actual cost thereof at the place of exportation, with design to evade the duties thereupon, or any part thereof, all such goods, wares, or merchandise, or the value thereof, to be recovered of the person making the entry, shall be forfeited." Before we look to the subsequent Acts by which it is con- tended that the above provision is annulled, it is proper to re- mark that no express or declared repeal is to be found in any of them ; it is inferred, or implied from certain provisions or enactments in the subsequent laws, from which it is argued that the section in question has been repealed. I had occa- sion to remark, in an opinion given in the course of this trial, " that the repeal of a law, by implication and constructibn of a subsequent law, should be so clear as to leave no reasonable doubt that such was the intention of the legislature ; it should be as certain as an express repeal. It should not be deduced by an ingenious course of argument, but should appear at once. The general presumption is, that, if a repeal was intended, it would have been expressly declared, and such is the usual practice of legislation." In the laws that have been occasion- ally referred to in the argument of this case, it has been seen FEBRUARY SESSIONS, 1840. 383 TJnited States v. Twenty-five cases of cloths, &c. how frequently repeals of sections and parts of sections have been declared. It-is not necessary in the duty I am now discharging, to de- tain you with a minute examination of all the Acta of Con- gress, from which the repeal of the sixty-sixth section of the Act of 1799 has been inferred. As to the Law of 1818, of 1823, and 1828, they appear clearly to me, to provide for cases entirely different from those described in that section, which relates to goods invoiced below their actual cost, with design to evade the duties thereupon. None of the Acts just mentioned provided for any such case. With this understand- ing of these Acts, it is unnecessary for me to inquire whether the expiration of the Act of 1818, by its own limitation, would revive the sixty-sixth section of the Act of 1799, if it were admitted to have been supplied by the law of 1818. On this subject I would suggest, that when a statute contains an ab- solute affirmative repeal of an antecedent statute, or a part of it, then, the expiration of the subsequent statute, by its own limitation, would not revive the repealed Act ; but where there is no such express repeal, but the first statute is taken to be repealed by the implication that it is supplied by the subse- quent law, then it would seem that we might well consider that the second law was rather a suspension than a repeal of the first ; and if the legislature, after the experiment, allowed the second Act to expire, it was their intention to go back to the provi- sions of the first. Otherwise, there would be no legislation on the subject. The difficulty of this question arises on the fourth section of the Act of 1830. This section, after directing the collec- tor to have a certain number of packages opened and ex- amined, and in what cases he shall order all the goods con- tained in the entry to be inspected, proceeds, " and if such goods be subject to an ad valorem duty, the same shall be ap- praised, and if any package shall be found to contain any article not described in the invoice, or if such package or in- voice be made up with intent, by a false valuation or extension. 384 FEBRUAEY SESSIONS, 1840. TTnited States v. Twenty-five oases of cloths, &c. or otherwise, to evade or defraud tlie revenue, the same shall be forfeited." This seems on a superficial view to provide for a case very similar to that described in the sixty-sixth section of the Act of 1799. That enacts that if any goods, &c., shall not be invoiced according to the actual cost thereof, with design to evade the duties thereupon, then, that if the invoice be made up with intent, by a false valuation or extension, or otherwise, to evade or defraud the revenue, a forfeiture shall follow. Before we examine and compare more closely these two en- actments, we should remark, that immediately following that in the Act of 1830, there is an express repeal of the fifteenth section of the Act of 1823, and also of certain parts of other Acts of Congress, but not an intimation of any intention to repeal or affect the sixty-sixth section of the Law of 1799. We must examine this question under the restriction, that re- peals of laws by implication, by construction, by conjecture, however plausible, are not to be favored. The law. has given a strict, rule by which we are to measure and try the casq. I shall take it, for it appears to me to be "truly stated, from the opinion of Judge Thompson, in the case of the United States V. 1 Case of Hair-pencils, 1 Paine, 405, 406, " It is admit- ted, that a repeal, by implication, of a former by a latter statute, is not to be favored. But such effect and operation is indispensable in some cases. As when the subsequent statute is inconsistent with the former, and the two cannot be reconciled. So, where the latter is on the same matter with the former, and introduces some new qualifications or modifi- cations, the former must necessarily be repealed ; the two can- not stand together. And in most cases the question resolves itself into the inquiry. What was the intention of the legisla- ture ? Did it mean to repeal or take away the former law, or was the new statute intended as merely cumulative ? Affirma- tives in statutes that introduce new laws, imply a negative of all that is not in the purview, so that a law directing a thing FEBEUAEY SESSIONS, 1840. 385 United States v. Twenty-five cases of cloths, &c. to be done in a certain manner, implies, that it shall not be done in any other manner." The Judge has given us the true rule by which we must be governed in deciding whether a clear aflBrmative statute has been repealed by implication, by supposing a repeal where none has been declared by the legislature. Such a repeal has been insisted upon in this case, by virtue of the enactments in the Acts of 1818 and 1823. In an opinion delivered on a question of evidence in the course of this trial, I had occasion to look to this argument, for the presumed repeal was elabo- rately argued on that question. I adhere to the opinion then delivered, that there is no repeal to be drawn from those statutes, of the provision in the sixty-sixth section of the Act of 1799, declaring that if any goods, wares, &c., " shall not be invoiced according to the actual cost thereof at the place of exportation, with design to evade the duties thereupon, or any part thereof, all such goods, &c., or the value thereof, to be re- covered of the persons making entry, shall be forfeited." Here are two strong defences provided by Congress to protect the revenue from the depredations of fraud and perjury. I am now asked to remove them by an implication, by an argu- mentative construction, by assuming that Congress have in- tended to do what they have not declared ; that they have surrendered or abandoned them. That for the forfeiture they have substituted an increase of duty, and for the right of re- covery against the offender, in case the goods are put out of their power, nothing. Surely there was nothing in the experi- ence of the government to induce them to weaken their de- fences against fraud ; on the contrary, their efforts have been to strengthen themselves, to meet and defeat, by their laws, the stratagems and devices from time to time invented by those whose interest it was to evade them. The statutes do not re- late to the same matter; they describe and provide for dis- similar cases ; the first for a false invoice with a design to evade the duties, that is, with a fraudulent intention, the other for an undervaluation of the goods without any such design. 25 386 PEBEUAKY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &o. It is obviously just and reasonable, that the penalty in the former case should be an entire forfeiture of the goods, but that the error in the latter should be repaired by imposing an additional duty upon them. This Act, then, of 1818, and all the provisions in it for appraisement, have for their object the ascertainment of duties, while the Law of 1799 inflicts forfei- ture for a designed fraud, consummated by a wilful perjury. Can I say that the Act of 1799 was supplied by that of 1818, or that it is inconsistent with it; that they cannot stand together, and one or the other must fall ? Is the first swal- lowed up, in the language of the . counsel, by the latter ? I cannot believe in any such view. I believe that the two Acts were intended to provide for different cases, that they are en- tirely consistent, and that it would be a bold stretch of my ju- dicial power, to imply or presume that Congress intended to repeal one by the other. In truth, the repeal would be by the Court, and not by the legislature. The doctrine contended for by the claimants, and founded on the repeal of the Act of 1799 is, that there is no longer any forfeiture for entering goods by a false and fraudulent invoice, designed to evade the revenue, and that, by the subsequent laws, the fraud must be discovered in the custom-house, on the examination and appraisement of the goods, and the seizure made before the goods leave the custom-house. The practical result of this doctrine is, that goods may be invoiced and entered at a false valuation, with the undoubted design to de- fraud the revenue, and nevertheless, if the fraud is so well con- trived, so artfully concealed, or so well managed in the custom- house, that the owner can get his goods over the threshold, they are safe from pursuit and forfeiture, and the fraudu- lent owner cannot be called upon for their value. I do not see where this doctrine stops, nor why it does not extend to cases where the goods were fraudulently withdrawn from the stores of the custom-house, nor do I see how the additional duties directed under the act of 1818, are to be assessed upon them or re- covered. This doctrine is too strong for me to take upon FEBRUAEY SESSIONS, 1840. 387 United States v. Twenty-five cases of cloths, &c. myself. When Congress shall say that such is their intention, I will obey their command, but I will not take upon myself to presume or imply such an intention, on conjectural arguments and ingenious constructions. The system adopted by Congress, so far as concerns our in- quiries, appears to me to be this. 1. By the Act of 1799 : if an invoice contains goods that are undervalued, with design to evade the duties, the goods so undervalued are forfeited. 2. When this undervaluation shall exceed a certain amount, the consequence to the importer was, that he should pay an addi- tional amount of duties according to the circumstances of the case, although there may have been no design to defraud the revenue. This was by the Act of 1818. 3. Where a package or invoice has been made up with intention to defraud, the package or invoice so made up is forfeited. This is under the Act of 1830. I cannot say that I have any doubt or difficulty in deciding that there is nothing in any Act of Congress antecedent to that of 1830, from or by which I could imply or suspect that Con- gress intended to repeal the part of the sixty-sixth section of the Law of 1799 to which I have referred ; much less is there that clear, distinct, and irresistible evidence of such intention, which would justify a Court sitting to administer and not to make the law, in pronouncing that such was the intention. My difficulty, and I have had some, has been with the Act of 1830, and that demands a particular examination. Are the provisions of that Act repugnant to or inconsistent with the sixty- sixth section of the Act of 1799, or is that section fully sup- plied or swallowed by the enactments of the law of 1830 ? The fourth section of this Act is that which is most relied on, and certainly has the strongest bearing on the question. By this section, the collectors are directed to have a certain number of packages out of every invoice opened and examined, to be designated by the collector. If on this examination it shall be found : 1. That the packages opened do not correspond with the invoice, by which I understand, do not correspond in the 388 FEBEUAKY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. description of the goods, their quality, quantity, &c. ; 2. Or that the goods are falsely charged in such invoice, clearly referring to their price, value, cost, then all the goods in the entry are to be inspected. After this inspection, if it shall appear to the collector that the goods are falsely charged in the invoice, that is, are charged at false prices, at prices belovr their actual value or cost, as the case may be, if the goods are subject to an ad valorem duty, they are to be appraised, in order to ascertain their true value, and 1, if any package shall be found to contain an article not described in the invoice, or 2, if such package, or 3, if such invoice be made up with intent, by a false valuation, exten- sion, or otherwise, to evade or defraud the revenue, the same shall be forfeited. What " same" shall be forfeited ? It is clear to me that it refers to each and all of the cases before stated, that is, the same package which shall be found to con- tain an article not described in the invoice, the same package ■which shall be made up with intent to defraud, and the same invoice which shall be made up with such intent. If the package be so made up by containing goods of a different quality, quan- tity, &c., with those described in the invoice, they are forfeited ; or if the invoice be made up, by a false valuation, to defraud, in either case, the forfeiture of the package in the one case and of the invoice in the other, is inflicted. A verbal criticism has been made on this clause, that is, that an invoice cannot be forfeited. I have no difficulty in understanding this to mean the goods contained in the invoice, and because, by the very force of the criticism, the language can have no meaning at all if it has not this. The thing containing, is often spoken of for the thing contained in it. If, as has been contended for the claimants, the words " if the package be found not to cor- respond with the invoice," embrace price or value as well as quantity, quality, &c., then the subsequent words, "or to be falsely charged in the invoice," are mere surplusage, have no meaning or effect whatever, and must be overlooked or ex- punged, contrary to a sound rule in the construction of statutes, indeed of every written instrument. What change has the Act FEBEUARY SESSIONS, 1840. 389 United States v. Twenty-five oases of cloths, &o. of 1832 made in the provisions of this section of the Act of 1830 ? It has been seen that, by this section, if an article was found in a package not described in the invoice, the whole package was forfeited ; by the Act of 1832 this penalty is moderated to a forfeiture of the article not entered, and as the entry must conform to the invoice, it is the same as if it were said not contained in the invoice. So the forfeiture is continued where the package has been made up to defraud the revenue, so far as respects the package ; then as to the invoice, so much of the said fourth section of the Act of 1830 as prescribes a forfeiture of goods found not to correspond with the invoice, which I have understood to mean not to correspond in quality or quantity, is repealed, but there is no repeal of that part of the section which relates to goods " falsely charged in the invoice, or to an invoice made up with intent to defraud." With this view of the Act of 1880, we must inquire whether its provisions are inconsistent with or repugnant to the enact- ment in the sixty-sixth section of the Act of 1799, now a question. Are they so irreconcilable that they cannot stand together, that they cannot be both in force ? Is this so clear and demonstrable as to force upon us the conclusion that Con- gress, in enacting the last, must necessarily have intended to abrogate the first ? The Act of 1799 speaks of the actual cost of the goods, that of 1830 of a valuation to be made by an appraisement. Do they mean the same thing ? The one refers to a standard of value known to the party, and infallible, the second to a standard of opinion, and which may be mistaken. The case cited from 11 "Wheat. 419, 427 (U. S. v. Tappan), decides strictly no more than that the words "true value," in the eleventh section of the Act of 1818, import the same thing as actual cost, and other cases have been cited to the same purpose in the construction of the Acts there under consideration ; but it is not to be inferred from these decisions, that in all cases or in every Act of Congress they are always used in the same sense. The inquiry always is with respect to the basis on 390 FEBRUAET SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. which, in the particular case, the ad valorem rate of duties is to be estimated ; whether upon the actual cost or the current market value thereof ; the Act then in question is examined, and it is concluded that the word " value" cannot be under- stood in any other sense than the words " actual cost," in the Act then under consideration, (pp. 420, 421.) Their natural meaning would not seem to be the same ; the one would or- dinarily be applied to the goods purchased, the other to goods sent by the manufacturers, or procured in some other way than by purchase. This distinction is recognised in the fifth section of the Act of 1823. It directs, that ad valorem duties shall be estimated by adding " to the actual cost of the same, if the same shall have been actually purchased, or to the actual value, if the same shall have been procured otherwise than by purchase." This inquiry goes as well to the question whether the Act of 1830 embraces the same case with that of 1799, and therefore supplies it, as to the question whether they are inconsistent. If they do not relate to the same subject-matter, then the Act of 1830 is neither a substitute for, nor inconsistent with that of 1799. I leave this part of the argument with these observa- tions, and go on to the inquiry whether in any other respects these Acts are inconsistent, so that both cannot be executed. How are they inconsistent ? Why may they not stand together ? They appear to provide for different offences, and to inflict different penalties, and that both may be executed, both may stand and be applied to the cases as they fall under them. The Act of 1799, declares that if goods shall not be invoiced ac- cording to their actual cost, with design to evade the duties, all such goods shall be forfeited. The offence is having goods in an invoice put down not according to their actual cost ; the penalty is a forfeiture of the goods ; alnd there is nothing in this Act from which it can be inferred, as has been done in relation to the subsequent Acts, that the fraud of the invoice must be dis- covered before the goods leave the custom-house, or that they must be there seized. If they have been falsely and fraudu- FEBRUARY SESSIONS, 1840. 391 United States v. Twenty-fiye cases of cloths, lently invoiced, the forfeiture attaches to them whea the fraud is committed, and they may be taken and forfeited for it any- where and at any time. But the offence designated in the Law of 1830, is entirely a different one, and the penalty is different, and neither of them inconsistent with the Act of 1799. I shall speak only of the invoice. By the Act of 1830, there is no provision for the forfeiture of individual goods which are falsely charged in an invoice, but the provision is, if the invoice be made up with intent to defraud, then the invoice is forfeited. The offence is the making up, the preparing and entering on an invoice with design to defraud, and this deliberate concoc- tion of such an attempt upon our revenue and its laws, infects and forfeits the whole invoice, although it may contain goods properly charged. Is there not reason for this ? When goods are found, perhaps but one or two articles in a large invoice, it would be harsh to forfeit the whole on that account, although these individual articles may have been introduced into the in- voice with a fraudulent design, all the rest having been honestly invoiced without any intention to defraud. It was therefore thought sufficient to guard against such a practice, to forfeit the offending articles. But when the whole invoice was fabri- cated, prepared, made up with a design, traced back to its formation, it was manifestly right and just to visit the deliberate contriver of the scheme with a forfeiture of all the goods con- tained in the invoice, without any discrimination in favor of such as may have been invoiced at a proper price, perhaps to assist in deceiving the officers and defrauding the law. In this particular these Acts appear to me to be consistent, to provide for different cases, to direct different proceedings, and to impose different penalties. The latter is therefore no substitute for the former. On a different construction there would be no penalty or no forfeiture of goods for invoicing them at false price's, unless you could go on and show that the whole invoice was made up with that design. No penalty but such an increase of duty as is imposed upon the most innocent error in charging the goods. 392 FEBEUARY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. But there is another important particular in which the sixty- sixth section of the Act of 1799 is neither supplied by nor in- consistent -with any of the subsequent Acts. I have already adverted to it. I mean that provision which gives to the United States a right of recovery of the value of goods which have not been invoiced according to their actual cost, with a fraudulent design. This proceeding was intended to be applied to a case where the goods could not ^ be reached by a seizure and forfeiture, but have been got through the custom-house, had been removed from its stores, and so disposed of as to be out of the power of the United States. This is obviously a most important and effective instrument in the hands of the ' government. It teaches the offender that however he may succeed in deceiving or in corrupting the oflEicer of the custom- house, however he may succeed in putting his goods where the law cannot reach them, he will not be safe in the perpetration of his crime, but will be personally answerable for the goods which were forfeited to the United States and became their property by the fraud. Has Congress in any manner, express or implied, abandoned this most valuable guard over their cus- tom-houses and their revenue ? If they have not, have I a right to do it for them by a judicial construction of Acts that have no reference to it in any way ? If this enactment is to be taken away, it must be done by the authority that made it. It is not for a Court, bound to execute the law, to construe away by remote implications and argumentative constructions, such a salutary provision as this. I will add another observa- tion upon this part of the case. The counsel for the claimants have contended, it is not necessary for me now to say with what success, that by the provisions of the Act of 1830 and the subsequent Acts, the whole proceeding, as respects the goods, must take place in the custom-house, the examination and appraisement must be there, the fraud must be there dis- covered, and the seizure there made. "What is the effect of this argument upon the question of the repeal of the sixty-sixth section of the Act of 1799 ? If the argument be sound, and FEBKUARY SESSIONS, 1840. 393 United States v. Twenty-five oases of cloths, &o. the claimants must stand by it, or they will escape the Act of 1799 only to fall under that of 1830, if the argument be sound, and the sixty-sixth section of the Act of 1799 is repealed, then it follows that the fraudulent owner of goods passed through the custom-house by a false invoice and a false oath may, an hour afterwards, exhibit them and hold them in open day safe from all danger, intangible by the law and the officers of the law, and furthermore, be not personally responsible for the value of the goods he has thus taken from the United States, and which in truth and fact were the property of the United States. Could Congress have intended this ? This would be to lay the revenue bare to the hand of the spoiler, and to say to him, Do your business adroitly, avoid immediate detection, and you may do it with impunity ! Every citizen may follow and take his goods fraudulently taken out of his possession ; but this just and necessary right is denied only to the United States. Can this be so ? The right and property, whatever they were, which the United States had in these goods, could not be divested by a fraud. I have now disposed of the most important questions of law which have been raised and discussed in the course of this trial. My decisions may be erroneous, and if they be so there is a means for correcting them. I have given to them a close and anxious attention, both on the argument here, and in my researches in my library. I have not therefore fallen into error from inattention or an indisposition to labor. I have given the result of my researches and reflections, and it is my highest satisfaction to know that another tribunal may be resorted to, to review my opinion. We now approach the evidence and facts of the case. But here a preliminary question of law meets us, which must be considered before we enter upon the evidence and facts. I al- lude to the question so strongly contested at the bar. On which party does the law throw the burden of proof : or the onus prohandi ? Are the United States bound to prove the charge of fraud affirmatively, to your full conviction, or have 394 FEBRUARY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. they done enough to make it incumbent on the claimants to prove their innocence? The answer to this question is not submitted to your discretion or to mine, but is given by an Act of Congress which has been forty years in force, and the justice and policy of which have not been denied. By the seventy-first section of the Act of 1799, it is declared that, " In actions, suits, or informations, to be brought where any seizure shall be made pursuant to this Act, if the property be claimed by any person, in every such case the onus prohandi shall lie upon such claimant ;" at the conclusion of the section, separated from this clause by other matter, it is added, " but the onus prohandi shall lie on the claimant only where probable cause is shown for such prosecution, to be judged of by the Court before whom the prosecution is had." When must this probable cause exist? When must it appear and be known? It is contended on behalf of the claimants that it must be antecedent to the seizure, must have been known to those by whom the seizure was made, and be the ground and warrant for their proceedings. I can by no means assent to this con- struction of the law. It has no reference whatever to the seiz- ure but to the trial; there must be probable cause for the prosecution, not for the seizure ; and the Court is to judge of it, by what appears to the Court, by what comes to the know- ledge of the Court on the trial of the prosecution. If, then, the evidence adduced on the part of the prosecution shall in the judgment of the Court show a probable cause for the prose- cution, the law says, the burden of proof shall be thrown upon the claimant, that is, he must discharge himself from the prosecution, he must prove his innocence, that he has not committed the ofi"ences charged upon him, to the satisfac- tion of the jury, or he must stand condemned. At first blush this would seem to be unreasonable and unjust. If it were so we are bound to obey and execute the law ; we have no power as a Court, as jurors, or as citizens, to disregard it. We shall see presently, I think, that it is neither unjust nor unreasonable. On the close of the evidence on behalf of the prosecution, how did the case stand before the Court ? 1. I refer generally FEBRUARY SESSIONS, 1840. 395 United States v. Twenty-fiye cases of cloths, &c. to the circumstances attending the seizure ; to the attempts to conceal the goods that the oflScers of the law were in search of ; to the repeated, deliberate, and confessed untruths de- clared to the officers by the claimants, to divert their pur- suit and prevent the discovery of the goods, which were hidden with great skill. It has been said again and again by the counsel for the claimants, that they were not bound to answer the questions of the officers ; that they might lawfully refuse to answer them. Let this be granted ; but can it be denied that if they did answer they were bound to answer truly? They showed no reluctance to answer : they did so, promptly and freely, but falsely. Does this raise no presumption against their innocence ? Is it not a strong ingredient in the probable cause required by the Act of Congress ? As to the panic, caused by the suddenness of the attack, you will judge of that. I see no evidence of it. They had taken the alarm before the officers came there ; they had time to deliberate and determine the course they would take, and they did determine to get clear of the difficulty and suspicion they labored under, notify the open, candid proceeding of men conscious of innocence and fearing no investigation, but, to protect themselves, to escape from it by a concealment of the property sought after, and by a tissue of falsehood to prevent a discovery. This began in the morning and was continued in the afternoon. Where was the sudden surprise by which this conduct is now excused. 2. A second ground of probable cause shown by the evidence of the prosecution, is found in the testimony of the appraisers, public and private. We are not on this question to consider the effect of the claimants' evidence to diminish the force of that testimony. On the testimony of these appraisers a very important undervaluation of the goods appears, and may be considered by you a probable cause at least for the prosecution. But there is a sort of negative testimony on this question of the onus probandi, which must have a powerful influence on the judgment of every man. It is, that the claimants have made no attempt, no pretence to meet the direct question in 396 FEBKUAEY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. issue, that is, what was the actual cost of these goods, although it is undeniably in their power. And it is now that you will perceive that in a case of this sort, there is nothing unjust or unreasonable in throwing the burden of proof upon them, in calling on them to prove their innocence, after the United States have shown probable cause for the prosecution. We have on this point, the opinion of as great a Judge- and as just a man as ever sat upon the bench to administer the laws of his country. In Brockenborough's Reports of the Decisions of Chief Justice Marshall, 375 (Schooner Thomas and Henry v. The U. S.), an opinion is delivered on this seventy-first section of the Act of 1799. The Chief Justice says, " In this case, the United States are not required to establish guilt, but the claimants must prove their innocence. It is not the duty of the Judge to justify the Legislature, but surely, if, in any case such a legislative provision be proper, it is in this. The fact is generally premeditated, and is perpetrated under all the pre- cautions and in all the secrecy which ingenuity can suggest, and the means of proving innocence, at least, to a reasonable extent, which is all that can be required, are in possession of the accused. In such a case he may, without a violation of principle, be required to prove his innocence. In such a case, the absence of testimony clearly in the power of the claimant, if not supplied by other equivalent testimony, must be fatal." The same doctrine is maintained by Judges Washington and Story, and by the Supreme Court of the United States. Indeed it has never been questioned, and that it is just and reasonable is manifest to common sense. Peters' C. C. Reports, 10 ; 2 Gall. 498 ; 8 Wheat. 407. Apply these principles, so obviously just and reasonable, to this case. The question is, what did these goods cost in England ? The claimants are the importers and purchasers. They know to a cent what they cost, they know of whom they purchased them, and they know precisely where to go for the proof, if they have it not in their pockets. But they have made no such attempt, nor have they given any reason for the FEBKUARY SESSIONS, 1840. 397 United States v. Twenty-five cases of clotlis, &c. omissioB. What says the Chief Justice to such a case? That " the absence of testimony clearly in the power of the claimants, if not supplied by other equivalent testimony, must be fatal." The only attempt at a reason for the absence of this conclu- sive evidence, clearly in the power of the claimants, was made by one of the counsel. It was this, that the seizure was made for non-payment of duties, and gave them no notice that the cost of the goods would come in question. It was forgotten that the information was filed in September, which sets out precisely the grounds on which the forfeiture would be insisted on, and among the rest, that the goods were not invoiced at their actual cost. On this question of the burden of proof, I am clearly of opinion that the United States have shown probable cause for the prosecution, and that the onus prohandi is thereby thrown upon the claimants. The important questions you have to decide in this case are, whether the goods in question, or any, and which of them, were invoiced below their actual cost, and whether the invoices, or any, and which of them, or the packages, or any, and which of them, were made up with the design, to evade the duties legally charged upon them, and to defraud the reve- nue of the United States. In pursuing this inquiry, you will always bear in mind the principle just decided, to wit, that the burden of proof lies on the claimants ; that it is incumbent on them to prove to your satisfaction that the goods are invoiced at their actual cost. If they have not done so, their defence must fail. The first step in this inquiry is to ascertain what was the actual cost of these goods ; and how has this been done on the part of the United States? By certain appraisements made in the first place by official appraisers of the custom-house of this city, and further by certain private appraisers selected for that purpose. I will here make a remark upon an argu- ment strongly and repeatedly urged on behalf of the claimants. It is this, that there cannot be but one official appraisement of the goods, and that that must be made in the custom-house at which the goods are entered. I think it is not necessary to 398 FEBEUAEY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. affirm or deny this doctrine. If the opinions of Messrs. Stewart and Simpson have not the authority of an official appraisement or act, they have nevertheless the weight of the judgment of men accustomed to value goods of this description, and who from their appointments, as well as their experience, maybe pre- sumed to have competent knowledge and skill in ascertaining their value. In this light you may consider their evidence and give credit to it accordingly. The evidence of the cost or value qf these goods, offered on the part of the United States, is found in these appraisements. But a preliminary objection is made to this evidence, which must be attended to before it is examined. It is said that you are to pronounce upon the fact of an under- valuation, and that you have no evidence of the fact, that is, no proof that the goods are invoiced below their actual cost ; and why ? Because you have no proof of what the actual cost was ; that you have the opinions and valuations of certain persons here in this city, but these do not and cannot prove the fact. You have been asked with great energy, and no small plausibi- lity. Will you pronounce a sentence of fraud upon the claimants? Will you condemn and take away their goods on mere opinions and valuations, when you ought to have proof of the fact that they were undervalued ? In reply to these pointed inquiries may you not ask : Why is it that you have not the direct evidence of the fact of actual cost ? Why are you obliged to resort to in- ferior evidence to come at the fact ? It is because the claimants who urge this objection upon you, who have in their knowledge and at their command the positive proof of the cost of the goods, have not produced it to you. It is indeed remarkable that, having such proof in their power, they have resorted to, relied upon precisely the same evidence they condemn when used by the United States, that is, opinions and valuations obtained here. Is this course of proceeding characterized too strongly, if you should consider the claimants as saying to you : We know what these goods cost ; we have the proof in our hands, but we will not produce it ; we will compel you to resort to valuations and opinions, and then they say they are not facts; FEBRUAEY SESSIONS, 1840. 399 United States v. Twenty-five cases of cloths, &c. we know that your appraisers will not exactly agree in their valuations, it is not possible they should, and then we will use them to destroy each other, and we will claim to be acquitted of all wrong, because half a dozen men cannot agree upon the amount of the wrong ; your witnesses must differ, if they are honest, and in this confusion we will escape. " The absence of testimony," says the late Chief Justice, " clearly in the power of the claimants, if not supplied by other equivalent testimony, must be fatal." I will say to you that in such cir- cumstances, you are justified in making the strongest presump- tions against the party thus withholding the truth from you. This principle, so obviously just and reasonable, is fully recog- nised in a case reported 1 Str. 505, Armory v. Delamirie, well known in our courts. A chimney-sweeper boy found a jewel, and carried it to the shop of the defendant, who was a gold- smith, to know what it was, and delivered it to an apprentice in the shop. He under pretence of weighing it, took out the stones, and said it came to three half pence. The master offered the boy the money, who refused to take it, and insisted upon having the jewel again. They gave him the socket with- out the stones. The boy brought an action of trover to recover their value. But the value was unknown, and the defendant would not produce the jewel. Whereupon, witnesses of the trade were examined to prove what a jewel of the finest water, to fit the socket, would be worth. The Chief Justice directed the jury, that unless the defendant did produce the jewel, and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages, which they did accordingly. The application of this case to that before us is plain ; as the claimants will not show the actual cost of these goods, you may presume the strongest against them, and estimate them at the highest appraisement that has been made of them. You are now to make up your verdict upon such testimony as you have received upon these questions : — Were these goods invoiced not at their actual cost ? And was this done with a 400 EBBKUAKY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. design to evade the duties chargeable upon them ? Were the invoices or packages made up with intent, by a false valuation, to defraud the revenue of the United States ? For the ascertainment of the cost or value of the goods you have various appraisements, made at different times and places and by different persons. The first at New York, by Mr. Lounsbury, an assistant appraiser, duly appointed and sworn, and by Mr. Tripler, not an appointed appraiser, but the clerk of the appraisers. This appraisement appears to have been made with the greatest possible speed, and the least possible examination. The time occupied was very short ; and of the seven hundred and twenty-one pieces, but thirty-two were ex- amined at all. Mr. Lounsbury told you that he has examined one hundred packages a day, which, on his own average of four pieces from each package, would be four hundred pieces examined in a day. You have seen how many hours it took here to examine thirty or forty pieces, and you must judge what sort of an examination Mr. Lounsbury gave to his four hundred, and what reliance you ought to place upon his estimates. You will say whether you will take such a valuation as a safe standard for the whole. I do not intend to speak to you of the examinations and valuations made by Mr. Robinson and other gentlemen of New York, nor of the objections made by the United States to the confidence that should be placed in their opinions and testimony. You have heard their evidence ; you have heard the objections, repeated again and again by the counsel, and it is a question of credit of which you are to judge. Of the appraisements made here you are more able to make a just estimate. The witnesses are your fellow-citizens, well known to you, and individually entitled to your respect. Their means of information will, then, be the particular object for your consideration, on the one side and the other. You have for the United States, Messrs. Stewart, Simpson, Siter, Lewis, Churchman, Kennard, Tingly ; and for the claimants, Burk, FEBRUAKY SESSIONS, 1840. 401 United States v. Twenty-five cases of cloths, &o. Bernard, "Williamson, Newlin, Richardson, Maybury, and some from New York. Your attention should be more directed to the knowledge, the experience, the skill, in judging of the value of cloths, than to the number. One competent witness would outweigh many incompetent ones ; but where competency is equal, numbers will preponderate. It is not like evidence of a fact, where the honesty of the witness gives him credit ; it- is evidence of opinion ; of judgment, where the honesty of the witness will not sustain him, unless he has the knowledge and skill to give confidence to his opinion. As to the variance between the valuations made here in Court, and those previously made by the same persons at the custom-house, you will remember that Mr. Siter, Mr. Lewis (I think), and Mr. Churchman declared that they could not pre- tend to form as satisfactory an opinion here as that made at the custom-house ; that they would themselves have but little confidence in it, and, in case of a difference, should adhere to the appraisement at the custom-house. With these explana- tions and qualifications, you will enter upon the examination of all the appraisements, and come to the conclusion you shall conscientiously believe to be just and true. It is, I think, a very clear proposition, that a valuation made by four or five judicious persons all meaning to do right, who shall compare their separate opinions, hear each other's reasons and agree upon a result, is more to be relied upon as coming at the true value, than the judgment of any one of them, or of any indi- vidual. This was done by the appraisers on the part of the prosecution. It is thus that juries make up their verdicts. When they retire to their room, there is generally a variety of opinions, but on comparing their opinions, and hearing each other's reasons, they come to a result in which they all agree, and which is more to be depended upon than any of the sepa- rate opinions. Supposing that you shall find that these goods are under- valued in the invoices, how are you to decide upon the fraudulent intent or design ? In doing this you will be influenced by the 26 402 FEBRUAEY SESSIONS, 1840. United States v. Twenty-five cases of cloths, &c. extent of the undervaluation. Is it enough to have heen a temptation to fraud ; could it on a large business afford a great profit ? Does it run generally through all the invoices, or is it only an occasional undervaluation, that might have happened by accident, by mistake, without any design ? These and other considerations will suggest themselves to you on this question of -intent. But you will not overlook the conduct of the parties at the time of the seizure. Was it that of upright men in the lawful pursuit of their lawful business ? I will not enlarge upon this part of the case. You have heard much of it, and I doubt not will judge of it rightfully ; neither refusing it its fair and reasonable influences, nor pressing it to an unjust ex- tremity. On this question of fraudulent intention, you cannot put aside the circumstance so often mentioned, and which indeed meets the claimants and frowns upon them at every turn of their case, in. every path by which they would escape, their declining or omitting to show the actual cost of these goods, their orders for the importation, their correspondence with the persons in England from whom they were bought, in short every document relating to the purchase, which had a tendency to show the truth and honesty of the transaction. Finally : As to the first and second counts, I have told you that I think they have not been sustained by the evidence, and that on them your verdict should be for the claimants. The third count. If you shall be of opinion that these goods were found concealed, as charged, and that the duties on them had not been paid or secured, by which you are to understand the whole amount of duties legally chargeable upon them ac- cording to their actual cost and value ; in that case the goods are forfeited, and the verdict should be for the United States. The fourth and tenth counts are founded on the sixty-sixth section of the Act of 1799, which not being repealed, the ver- dict on these counts should go for the United States, provided that on the evidence you shall believe that the goods were en- tered in the oflSce of the collector of New York, and were not FEBRUARY SESSIONS, 1840. 403 United States v. Twenty-five cases of cloths, &o. invoiced according to the actual cost thereof at the place of exportation, vfith design to evade the duties thereupon, or any part thereof. The sixth count is founded on the fourth section of the Act of 1830, as are also the eighth and eleventh counts. If, on the evidence, you shall believe that the invoices were made up with intent, by a false valuation or extension, to evade or de- fraud the revenue, your verdict on these counts should be for the United States. The fifth count charges that each and every of the packages, and each and every of the invoices, were made up with intent, by a false valuation, to defraud the revenue, and if you shall so find them, the verdict should be for the United States. The ninth and thirteenth counts are founded on the four- teenth section of the Act of 1832. If, on the evidence, you shall believe that the packages were made up with intent to evade or defraud the revenue, your verdict should be for the United States. The seventh and twelfth counts contain a similar charge under the fourth section of the Act of 1830, it being laid in these counts that the packages were made up. with intent, by a false valuation, to evade and defraud the revenue. You will observe that many of the counts are substantially the same, varying only in form, or the manner of laying the offence. With the exception of the count for concealment, they may be resolved into these general charges : That the goods were not invoiced according to their actual cost, with a design to evade the duties ; that the packages were made up with intent, by a false valuation, to defraud the revenue ; that the invoices were made up with that intent ; that the packages were made up with intent to evade or defraud the revenue. This interesting cause will now be committed to you. Seldom has any Jury had submitted to them one of equal importance. If, as you have heard, there has been a combination anywhere to defraud your revenue, and depress the honest business and industry of your fellow-citizens, you will be happy to be in- 404 FEBEUAKY SESSIONS, 1840. United States v. Twenty-five oases of cloths, &e. strumental in punishing the offenders and breaking it up. On the other hand, if the claimants have had no lot or part in any such combination or practices, it will give you equal pleasure to say so by your verdict. Yerdict for the claimants on the first two counts of the in- formation, and for the United States on the eleven remaining counts. On the 8th May, 1840, a motion was made, on behalf of the claimants, for a new trial ; which was refused on the 1st June* On the 22d April, 1841, a writ of error was taken to the Cir- cuit Court of the United States for the Third Circuit, and on the 25tb November of the same year the judgment of the Dis- trict Court was affirmed with costs. On the same day a writ of error was taken to the Supreme Court of the United States, and in January Term, 1845, the judgment of the Circuit Court was affirmed. See 3 Howard, 197. DISTRICT COURT OF THE UNITED STATES. V AUGUST SESSIONS, 1840. ELIJAH VAN STCKEL, 7. THE SCHOONER THOMAS EWING, M'EARLAND, MASTER, AND JOHN W. 1. Where a vessel arrived off Mobile towards evening, there being indica- tions of bad weather during the night, and the captain, unable to obtain a pilot, determined to follow a pilot-boat up the bay, and in so doing the vessel ran aground ; such grounding cannot be imputed to the fault or misconduct of the captain. 2. A vessel being aground, the captain ordered the deck-load, consisting of casks of brandy, to be thrown overboard, it was found impossible, how- ever, to throw the casks over whole, and their heads were Icnocked out to allow the liquor to escape through the scuppers. Held, that such a state of facts would not sustain a charge of want of skill or of misconduct against the captain ; and that the brandy was lost by "peril of the sea." This was a libel on a bill of lading. It appeared that, on the 4th March, 1840, the libellant shipped sundry casks of brandy and other liquors on board the Thomas Ewing, John W. Ireland, master, consigned to Ogden & Brother at Mobile, eighty-eight casks being loaded on deck ; that on the 4th April, 1840, the schooner arrived at the mouth of Mobile bay ; that the 'weather was then threaten- ing, and the captain being unable to obtain a pilot, determined to follow a pilot-boat up the bay, the persons on board such boat having told him, on learning his draught of water, that he might 406 AUGUST SESSIONS, 1840. Van Syckel v. The Ewing. do SO in safety; that, so going np the bay, the schooner grounded in a very dangerous position ; that the captain ordered the deck-load to be thrown overboard, and it being impossible to throw the casks over whole, they were staved ; that the vessel then was much easier ; that on the next day the captain hired lighters to take the rest of the casks to Mobile, where they were delivered to the consignees on payment of freight and $593 64, the amount of salvage, average, &c. And on this state of the facts the consignor libelled the schooner for his damages. The case came on for a hearing, before Judge Hopkinson, on the 13th November, 1840, and was argued by Hood for the libellant, and Gr. M. Wharton for the respondent. Hood, for libellant. It lies on the respondent to justify the destruction of the cargo. 1 Saund, PI. & Ev. 330, 331. But the destruction cannot be justified in this case. The Eebecca, Ware, 188 ; 3 Kent. Comm. (1837) 318 ; Laws of Wisbury, Art. 21, 8 ; Laws of Oleron, 8 Abbot, 378, 379 ; Marshal Ins. 466; Poth. 62 ; 2 Phil. Ins. 176. Wharton, for respondent. The loss in this case happened from a peril of the sea. It is said that the captain should have taken a pilot, and not being able to do so should have waited, but he would have done so in the face of a threatening storm and at the risk of his cargo. On the 27th November, 1840, Judge Hopkinson delivered the following opinion in the case : — '■ The libellant in this case complains, that on the 4th of March, 1840, at Philadelphia, under a certain contract or bill of lading, he shipped in good order and condition, on board the schooner Thomas Ewing, whereof John W. Ireland was then master, ten hogsheads of rum, twenty casks of fourth proof brandy, fifty barrels of rum, and one hundred and sixty AUaUST SESSIONS, 1840. 407 Van Syckel v. The Ewing. barrels of first proof brandy, whereof eighty-eight barrels of the first proof brandy were laden on the deck of the said schooner, to be delivered in like good order and condition at the port of Mobile, the dangers of the sea only excepted, unto Ogden and Brother, or their assigns, they paying freight, &c. That on the 6th of April the vessel arrived at Mobile, that the consignees ofi'ered to pay the freight according to the stipula- tions of the bill of lading, that all the goods were delivered except the eighty-eight barrels of brandy laden on the deck of the schooner, which were never delivered, but that the said eighty-eight barrels of brandy were wantonly, illegally, and contrary to the contract aforesaid, stove in on the said deck, and totally destroyed without any sufficient and legal cause, on the 4th and 5th days of April, 1840, during the continuance of the said voyage. It is further stated that by the misconduct and want of skill and attention of the said John W. Ireland, in attempting to proceed up Mobile bay without a pilot on board, and by other misconduct and neglect of the said John W. Ireland, the said schooner grounded on the west bank of Mobile bar, on the evening of the 4th of April, 1840, by means of which mis- conduct and neglect the libellant was subjected to pay as sal- vage and charges incident thereto, on that part of his goods not destroyed by the said John W. Ireland, and shipped in the hold of the schooner, $593 64. The claim of the libellant is for the amount or value of the eighty-eight barrels of brandy destroyed and totally lost, and for the salvage and charges paid by him on that part of his goods which was safely delivered. The answer of the respondent, put in on behalf of the owners of the schooner, alleges that the schooner proceeded on her voyage on the 5th of March last past, and arrived at Mobile on the 6th of April following ; that during her voyage, viz. : on the 4th day of the said April, the vessel grounded on the bar of Mobile bay, owing to the difficulty of the naviga- tion and the state of the weather, and to the impossibility of 408 AUGUST SESSIONS, 1840. Van Syckel v. The Ewing. procuring a pilot for the immediate use of the said schooner, at the same time the master thereof following the advice and direction of the pilot who was aboard one of the vessels in ad- vance of the said schooner. The respondent avers that the said grounding of the schooner arose from and was caused by the dangers of the sea, and not in any degree by the miscon- duct, want of skill or attention of the said master, or by any neglect on his part ; that for the purpose of lightening the vessel, and in order to save her from bilging, she striking very hard, the deck-load was thrown overboard ; the heads of some of the casks being stove in ; that no part of the cargo but the deck-load was injured; that this was done in order to the general safety and preservation of the vessel and cargo, and conduced to that end. The answer then proceeds to aver that having failed in all the attempts to start the schooner from her position in the mud, certain fishing smacks were employed to unload the cargo and take it to Mobile, and that the vessel being thus lightened was got off and proceeded to Mobile; that the average and salvage paid for this service were adjusted and settled by proceedings in the Admiralty Court at Mobile, to which the consignees of the brandy of the libellant were par- ties and assented ; and that they received all the goods con- tained in the bill of lading, except the barrels thrown over- board ; that they paid the freight and also their proportion of the average and salvage. No objection has been taken on the part of the respondent to the jurisdiction of the Court, nor to the proceeding in rem. against the body of the vessel for compensation for the injury and loss complained of. I shall, therefore, give no opinion upon those points. The questions to be decided are questions of fact, and the issue is so taken in the bill and answer. By the contract, or bill of lading, the respondent undertook and bound himself to deliver the goods therein mentioned at Mobile, in the like good order and condition in which he received them, " the dangers of the sea only excepted." Has AUGUST SESSIONS, 1840. 409 Van Syokel v. The Ewing. he performed this contract ? Was the loss complained of caused by dangers of the sea, or were the said eighty-eight barrels of brandy, as the libel alleges, -wantonly, illegally, and contrary to the contract aforesaid, stove, broken and destroyed, without any sufficient or legal cause. Witnesses have been examined by both parties upon this issue of fact. On the part of the libellant, George Dudley has testified, that he was a passenger and consignee of part of the goods on board the schooner, that he was on deck when she went aground, about 8 o'clock on the evening of the 3d of April. The captain proposed lightening the cargo ; there was a quantity of barrels of brandy on deck. The captain and mate concluded on throwing them overboard. I understand this witness to say that this was after the schooner had been three or four hours aground. They threw the brandy overboard by staving in the heads of the barrels. This was on the west bank of Mobile bar, and about three or four hundred yards from the light- house. The wind was not immoderately high when the schooner went aground ; there was a considerable surf and breakers ; captain was much alarmed when the vessel went aground ; he had not any pilot on board. There was only one officer on board. The captain did not, as deponent recollects, consult him as to staving the brandy. There was a more con- venient way proposed of getting rid of the brandy, and that was by the means they adopted of staving in the heads. I would here observe that the witness does not state by whom this way of getting rid of the brandy was proposed, and he says they, that is, the captain and mate, adopted it ; it would rather seem that the proposition came from others. The wit- ness left the schooner the next morning, the weather being moderate but foggy, and neither vessel nor cargo having suf- fered, except that part thrown overboard. He says that the place where they went aground is above the place where ves- sels usually take in pilots. He thinks the wind was blowing on shore when the vessel went aground and the brandy was thrown 410 AUGUST SESSIONS, 1840. Van Syckel v. The Ewing. overboard. There was a pilot-boat, but hardly near enough to speak at the time we went aground. Samuel Smith was not in the vessel, and says nothing as to the accident or causes of the loss. Charles W. Ogden, one of the consignees at Mobile, gives no information as to the accident or cause of the loss, but he says it is customary for vessels bound to Mobile, to take in pilots before they enter the bay: he says without exception. The narrows are formed by Dauphin Island and other land. The bar extends outside, and crossing it is difficult navigation. This is all the testimony on the part of the libellant — and but one of the witnesses, George Dudley, testifies anything upon the question we are now inquiring about, that is, the cause and manner of the loss. On the part of the respondent, several witnesses have been examined. The first was Joseph Woods, but he only speaks of proceedings at Mobile after the arrival of the vessel there. Brastus Large was on board the schooner on the voyage in question, as a seaman. He testifies, that after a passage of twenty-four days they got sight of the light-house at Mobile point, saw a pilot-boat in the afternoon, made toward her, the boat steered out, spoke a ship, and put a pilot on board of her. The boat then steered for our schooner. We spoke her when we got near enough, and asked for a pilot ; they said they had none. Then we could not get a pilot. They said, follow them and they would take us in. As the water looked very bad, like squally and roUgh weather, it was thought best by the captain and mate to go by their directions, and steer after the boat. This was just before sunset. They steered after the boat by their directions as nigh as we could. Before we got in it came on so dark that they could not see the boat only by a light they put out. About 8 o'clock they struck the bottom; hailed the pilot-boat, but she did not come to them. They lay there on the bar until Sunday morning at 10 o'clock. She AUGUST SESSIONS, 1840. 411 Van Syckel v. The Ewing. thumped pretty hard the first night, after that she did not thump hard for more than once in a while. The witness then details the efforts that were made, by carrying the anchor out, &c., to heave the schooner off, doing all they could until 12 o'clock on Friday night. There was a considerable sea on her, and she thumped pretty heavy. It was thought by the captain, and, he believes, the mate, to throw her deck-load overboard, to keep her from beating to pieces. This lightened the vessel and she did not thump so hard. The next morning they took their clothes and some provisions ashore to the light- house. They had previously hung a signal at half mast. He speaks of the employment of the fishing boats to take part of the cargo out, and get the schooner off. The vessel was con- sidered by the officers to be in a dangerous situation, when they threw the deck-load overboard, and the witness thought so himself. They did not think she would ever get off, when they went to the light-house and tried to get help. On his cross-examination, he says that at the time they saw the pilot boat there was a light wind on the land, the weather looked thick and squally, but there was no squall. The sea was very moderate then. When the brandy was thrown overboard, there was a light breeze towards the shore, and the tide was making out at about five miles an hour. They fired guns after they struck for an hour or two. It was a rifle or musket. Henry Jordan was a seaman on board the schooner. He says, that when they neared the light-house at Mobile, the weather was very thick, looking cloudy, it had the appearance of bad weather, had a fair wind going up the bay, towards the light-house. In the afternoon of Friday saw a pilot boat, hoisted the pilot jack and made towards the boat, she had just put a pilot on board a ship ; she hailed us, we asked if they had a pilot on board, they answered no, we asked if there were any other boats out, they said they believed not, our captain asked if we could follow them in, they asked how much water we drew, the captain told them, they said yes, keep after the boat, and we did so as near as possible. The witness then 412 AUGUST SESSIONS, 1840. Van Syckel v. The Ewing. speaks of their running aground, of their efforts to get her off, that she began to beat very heavy on the bottom, it was calm but a very heavy surf, found they could do no good by heav- ing on the anchor. A light breeze came off the shore, hoisted their sails to take advantage of it, the schooner was still beating on the beach further up,was beating on the bottom worse, the cap- tain sent for the witness and another man in the cabin, and asked us what we thought about throwing off the deck-load. Witness told the captain that he and the mate ought to know best about it, but that I did not think the vessel would stand long whole. We accordingly went on deck, still beating on the bottom worse. A short time after the mate ordered us to throw the deck-load overboard. We accordingly cut the lashings and threw over what lumber was in the road, then we tried to heave overboard a barrel of liquor, just whole as it was, we found we could not do it, and accordingly went to work staving the heads in and cutting the hoops, at last we cleared the deck; the hawser was then easier, at daylight they hoisted signals, fired through the night from a musket, went to the shore in the boat, taking Mr. Dudley, the passenger, employed the fisherman to take out the cargo and get the schooner off. On the cross-exami- nation this witness says, it was ten or a dozen miles below the lighthouse they first saw the pilot boat, the lighthouse was not then in sight that he knows of. On this evidence we are to decide whether the loss complain- ed of, was caused "by perils of the sea," or was the conse- quence of unskilfulness, negligence, inattention or fault of the master ; whether, in the language of the libel, the goods in question were destroyed contrary to the contract of the bill of lading, wantonly, illegally, and without any sufficient and legal cause. The counsel for the libellant has with great in- dustry collected and cited numerous cases to explain what are properly perils of the sea, and what it was the duty of the captain to do before he proceeded to the extremity of casting part of his cargo overboard. The law upon these points is -well settled, and must be conceded to the libellant as he claims it. AUGUST SESSIONS, 1840. 413 Van Syokel i^. The Ewing. Our inquiry is of the facts — that is whether the captain did conform himself to that which the law required of him in the circumstances and situation in which he was placed. The libellant has taken two leading exceptions to his conduct and proceedings : — 1. His attempting to come up the bay without a pilot. 2. His breaking the barrels of brandy, instead of throwing them overboard, and taking the chance of recovering all or some of them by their floating on shore. Some other objections have been stated, but they are either of little importance or included in those mentioned. The schooner, Thomas Ewing, had a valuable cargo on board, about $50,000 ; she had three seamen before the mast, with the captain, mate and cook, to navigate her. She arrived at or near the entrance of Mobile bay on the afternoon of the 3d of April ; the distance from Mobile is not accurately as- certained by the witnesses, but I collect from their testimony that it is about forty-five miles. She came to this point in the afternoon, the navigation of the bay was known to be difficult and I should presume, impracticable, without extreme danger, at night, unless under the command of a pilot or some guidance that might be reasonably depended upon. The master of the schooner having a pilot boat in sight, hailed her and en- deavored to get a pilot from her. But it appears she had but one on board, and he was engaged for a ship then entering the bay. The master of the schooner being thus disappointed, asked if there were any more pilots out, from which we must suppose that it was his intention to wait for one, if by waiting there was a probability of obtaining one. He was answered in the negative. The question then presents itself, what was it his duty to do in the actual situation in which he was placed, a pilot could not then be had, and there was no prospect of his getting one until the next day. Night was coming on, and although the weather was not bad, nor even then squally, yet the two seamen testify that the appearances were such as to warrant a belief of approaching bad weather. Large says, the 414 AUaUST SESSIONS, 1840. Van Syckel v. The Ewing. water looked very bad, like squally and rough weather. This ■was just before sunset. H. Jordan says, the weather was very thick, looking cloudy, it had the appearance of bad weather, and the wind was fair for going up the bay, the pilot was going up the bay, and either on the suggestion of the master of the schooner, or of the persons on board the boat, it was deter- mined to follow her up the bay. Was this a wise and judicious determination, such as a prudent and skilful navigator would make, or is the master chargeable with misconduct, want of skill, and inattention to the interests committed to his charge, and his duties as the master of this vessel, in so determining ? He had but one other choice, which was to beat out again to sea, for the wind was setting up the bay, and take his chance there for the weather through the night, and until he should be able to procure a pilot, which was altogether uncertain. We must not forget that no person on board the schooner made any ob- jection then to the course adopted by the captain, nor has any witness here said it was injudicious, and the mate expressly ap- proved of it. The persons on board the pilot boat, who may be presumed to have been acquainted with the navigation of the bay, recommended it, and told the master of the schooner to follow them and they would take him in. This was done after the master had informed them of the draught of water of the schooner. It is clearly in evidence that the schooner did follow the pilot boat, steering by the directions they received from her as nigh as they could. The night was dark, at times they could see where the boat was only by their light. If the schooner had taken the other alternative and gone to sea, and any disaster had happened to her, it would have been more difficult to defend the master against the charges of unskilful- ness, inattention, or imprudence. It is my opinion that in de- termining to follow the pilot up the bay, he adopted the most safe and judicious course in his power, under all the circum- stances in which he was placed, and, of consequence, any ac- cident or loss which occurred in the execution of that pro- ceeding, cannot be imputed to the misconduct or fault of the master of the schooner. AUGUST SESSIONS, 1840. 415 Van Syckel v. The Ewing. This brings us to the second ground of complaint, for it is undeniable that the master was not only bound to the exercise of skill and attention before the accident, but that after it occurred it was incumbent upon him to use the same skill and attention to prevent any loss of the cargo, or to make it as little as possible. About eight o'clock in the evening, the schooner being under full sail, with a fair wind, and following the pilot boat as nearly as they could, ran upon a bar of mud. The pilot "boat was immediately hailed, but did not come to their relief. Every effort seems to have been made by carrying out the anchor and heaving upon it, &c., to get her off, but in vain ; she lay thumping on this bar heavily, there being a con- siderable sea and surf running upon her. It was thought, says Large, by the captain and mate necessary to throw her deck- load overboard, to keep her from beating to pieces. It was done ; it lightened her, and she did not thump so hard. Jor- dan also details the efforts made to get the schooner off, which seem to have been all that judgment and skill could devise ; she beat, he says, very heavy on the bottom ; it was calm, but there was a very heavy surf. The captain sent for the witness and another man into the cabin, and asked us what we thought about throwing off the deck-load. Witness said he did not think the vessel would stand long whole, and the deck-load was thrown overboard. To the necessity of this measure for the safety of the vessel and all the rest of the cargo, we have the opinion of the captain, the mate, and two out of three of the seamen — can we judge of it better than these persons who were present at the scene, and whose vocation enabled them to esti- mate the danger and the necessity of the remedy ? The event justified the proceeding, the vessel was lightened, the thumping became less, and she was finally got off without injury to her- self or the rest of the cargo. As to the means of getting rid of the deck-load, can we say it was a wanton and illegal sacri- fice of the property, and that the barrels should have been thrown overboard, and not broken up on the deck of the vessel ? She was not strongly manned, and some of her crew were necessarily employed in various services. When the order was 416 AUGUST SESSIONS, 1840. Van Syckel v. The Ewing. given to throw the deck-load overboard, it does not seem that the manner of doing it was expressly directed. The men who undertook it, to whom the order was given, began by cutting away the lashings and throwing over the lumber that was in their way. They then tried to heave overboard a barrel of liquor, just whole as it was, but found they could not do it, and then they went to work staving the heads and cutting the hoops.' I understand, although it is not expressly said, that the order to throw off the deck-load was given to the two men that had been consulted in the cabin. We have no direct evidence of the height of the schooner's side from the deck, but I presume it is not unreasonable to suppose it was from two to three feet. A barrel of brandy is no inconsiderable weight, and^ I can well believe that these men could not throw eighty-eight barrels over the side of the vessel, incommoded as they must have been by the rising and falling of the vessel as she thumped upon the beach. I do not see that the charge of negligence, want of skill, or misconduct can be maintained on this part of the case. I am of opinion on the whole case, that there was nothing in the immediate destruction and loss of the property of the libellant, nor in the conduct and proceedings of the master of the schooner antecedent to the disaster, which can be imputed to him as a fault, misconduct, or want of skill and attention in the performance of his duty, but that the loss happened by " perils of the sea," within the meaning of the contract con- tained in the bill of lading. The average and adjustment made at Mobile, although not binding on us, shows that the same view was taken of the case both by the Court of Ad- miralty and the consignees of the libellant, who were parties to and acquiesced in that adjustment and settlement. Let the libel be dismissed with costs. On the 4th December, 1840, an appeal from this decree was taken to the Circuit Court of the United States for the third circuit, and on the 28th October, 1841, the decree of the District Court was affirmed with costs. DISTRICT COURT OF THE UNITED STATES. -€mUxu iiatritt nf ^fnitqlnonia. FEBRUARY SESSIONS, 1841. JAMBS S. BENTON V. JOHN WHITNEY. 1. In an action by a seaman for his wages, where the owner or master endeavors to deprive Mm of them by an allegation of misconduct, the respondent will be held to strict proof, and be required to make out » clear case. 2. In an action by a seaman against his officer for assault and battery, the libellant must make out a clear case, by credible and consistent proof. 3. The weapon used by an officer for punishing a seaman is always a subject of consideration and weight with the Court. This was a libel for assault and battery. It appeared that the vessel of which the respondent was master, and on board of which the alleged assault and batterj took place, had been twelve days in port before this suit was brought, or any complaint made by the libellant of ill usage. The master refused to pay the libellant's wages on the ground of his misconduct, upon which a suit was commenced for the wages, and this libel filed for the assault and battery. On the hearing of the case for the wages a decree was given for the libellant, the Court not thinking that suflScient cause was shown either to forfeit or reduce the amount claimed. In support of this charge of assault and battery two witnesses were examined; they gave very diflFerent and, on some points, contradictory accounts of the affair, and, at worst, it seemed to have been one of those sudden affrays, provoked by some impertinent 27 418 FEBKUAKY SESSIONS, 1841. Benton v, Whitney. language used by the libellant in reply to an order, which fre- quently occur on board of vessels. No serious injury was done to the libellant. The case came on for a hearing, before Judge Hopkinson, on the 27th March, 1841, and was argued by H. Hubbell, for the libellant, and Austin, for the respondent. On the same day Judge Hopkinson delivered the following opinion : In an action by a mariner for his wages, in which he seeks for nothing but a remuneration for his labor, and the owner or master of the vessel endeavors to deprive him of it by an alle- gation of a forfeiture, or to make deductions by charges of mis- conduct, I hold the respondent to strict proof, and require of him to show clearly, a good and sufficient cause for the defence. I will not defeat such a claim, and take from the man his hard earnings for services which have been rendered and received, for unimportant acts of disobedience, or rude and impertinent lan- guage, unless it be of a very gross_ character or dangerous to the discipline of the ship, and subordination of her crew; faults which such men as seamen commit without any serious design of insubordination or insult, but which masters and mates, not unfrequently as rough as their men, are fond of calling mutiny, to resist a demand for wages. We do not look for the manners of a drawing-room on board of a ship, nor should we punish as an assault and battery those violations of the pride or person of a sailor, which in another class of men must be repressed or they would lead to mortal consequences. While, therefore, in a suit brought by a sailor for his wages, I would make every reasonable presumption to protect him from loss, on the other hand, if he brings his officers here for an assault upon him, to which he is frequently instigated by bad advisers on shore, I reverse the proceeding, and require him to make out a clear case by credible and consistent proof. I throw the burden on him, with no disposition to favor frivolous complaints, or en- courage such litigation. It is not enough to show on the part of the officer, coarse and threatening language, it is the idiom of the sea, " signifying nothing ; " nor even a raeh and perhaps unnecessary blow, for if such occurrences are to be the grounds FEBKUARY SESSIONS, 1841. 419 Benton v. Whitney. of these suits, a vessel will seldom come into port, -vvitliout fur- nishing more or less of them. Officers will be under such an apprehension of them, that they will be unable to maintain that discipline, which is essential to tlie safety of all. But when I can see there has been a deliberate design to oppress a seaman, an assault upon him to gratify some personal ill will or indulge a vindictive temper ; or where there has been a wanton and tyrannical abuse of power ; or if a serious injury has been inflicted by the violence of passion, however sudden, in such cases, redress for the wrong will always be found in this Court, so far as I am capable of afi"ording it. Obedience and submis- sion are the duty of a sailor on his voyage, and the law rewards him for them, by an ample protection against wrong, when he reaches his port, and comes within the power of the law. The weapon used by an officer for punishing a seaman, is always a subject of consideration and weight with the Court. Actions for assault and battery were first brought in this Court, since I came upon the bench. They were formerly pro- secuted in common law Courts of the State, where the delay in obtaining a trial, the difficulty of having witnesses at the trial, and the heavy expense, were sufficient discouragements to pre- vent frivolous and vexatious suits. But the speedy trial to be had here, with little or no advance of money, where something may be gained and nothing lost, for the plaintiff cannot pay the legal costs if he is unsuccessful, has been a great encou- ragement to trifling complaints, and experimental suits, which are determined in a few days. He may therefore venture on any chance, however desperate ; he may get something ; he can lose nothing. I desire to discountenance such experiments, but will freely open the door, to correct every serious abuse of the power given to the officers of a vessel to preserve her neces- sary discipline, and not for the indulgence of a cruel and vin- dictive temper, or the out|)reaks of unrestrained and violent passions. In this case I do not think that the libellant has given suffi- cient evidence to support his complaint. Let the libel be dismissed. 420 FEBRUARY SESSIONS, 1841. CoTerdale v. The North America. LEVI COVBEDALB, OWNER OF ONE MOIETY OF THE SCHOONER V. THE SCHOONER NORTH AMERICA, AND MARTHA RUSSBL, OWNER OF THE OTHER MOIETY OF SAID SCHOONER. Where a, party, late master, and claiming to be part owner of a vessel prayed for possession, and, also, for security for her safe return from a voyage projected by the other owner, and the question of title depended on the state of the accounts between the parties, which could not con- veniently be settled before the Court ; an interlocutory order was made, that the vessel be delivered to the libellant, to proceed on the projected voyage, on his own stipulation for her return and submission to the order of the Court, and on payment of the costs accrued at the date of the order, but the ultimate liability for those costp to await a final decree. This was a libel, by a dissentient part owner, late master, praying for possession of his share of the schooner North America, and for security for her safe return from a voyage projected by the other part owner. The libellant's part owner- ship was denied by the respondent. The case came on for a hearing, before Judge Hopkinson, on the 27th March, 1841, and was argued by Gr. M. Wharton, for libellant, and 0. Hopkinson, for respondent. On the 29th March, 1841, Judge Hopkinson delivered the following opinion. In the present state of the evidence in this case, it is im- possible to come to any certain or satisfactory conclusion as to the true character of the contract between the parties. That a negotiation was carried on, for the sale of one half part of the vessel, is undoubtedly true, but we have nothing to inform us what the contract was. The evidence consists altogether of loose, casual, and contradictory , conversation ; from some of which we would infer that the transfer was absolute, and from FEBRUARY SESSIONS, 1841. 421 Coverdale v. The North America. others, that it was not to be made until the libellant had actually paid his equal share of the first cost of the vessel, and of the expenses that had been incurred for her repair. In this uncertainty the acts of the parties -will not only be a safer interpretation of their intentions, but furnish an equitable ground for the final disposition of the case. Of these acts none is so important as the amount of money paid by the libellant in execution of this contract. If he has paid all^ or the greater part of the price, as he contends, the presumption ■will be in his favor ; if, on the other hand, he has paid but the small sum insisted upon by the respondent, both the presump- tion as to the character of the contract, and the equity of the case, would forbid me from putting him into possession of a property for which he has paid so little, when his personal responsibility for the residue does not appear to be such as can be relied upon. This important part of the case depends upon the state of the accounts between the parties. They have not been ex- amined, except in a very general way, by the counsel on either side, nor indeed do they seem to have the means of making an accurate statement. This will require some time, and may be done by the counsel at their offices, with the explanation of the parties. The evidence that has been produced here may be also used. The counsel may either do this separately, and submit their respective statements to the Court, or, which will be better, make the examination together, and agree upon the result. In the meantime the vessel must not continue at an expense that is eating her up. The interest of both parties require that this should be avoided. In these circumstances I have come to the conclusion to make no final decree at this time, but an interlocutory order. One of the excellencies of the Admiralty jurisdiction is the control the Court has over the case, to do justice to the par- ties, and take care of their interests, sometimes to protect them against themselves. The Judge may be mistaken as to 422 FEBRUAEY SESSIONS, 1841. Whitney v. Eager. what is just and right in the ease, but he is seldom prevented from doing what he thinks to be so by any impediment of form. It is ordered, that the vessel be delivered to the libellant to proceed on the voyage now intended, on giving his own stipulation for the return of the vessel to the port of Philadel- phia, there to be placed in the custody and under the order of the Court: and that the said vessel be delivered to the libellant, by the Marshal of the Court, on his paying the costs now accrued on her ; but the ultimate liability for these costs shall await the final decree of. the Court. F. GERARD WHITNEY, MARINER, V. JOHN EAGER, MASTER OP THE BRIG ORIOLE. 1. Where the payment of a. seaman's wages is refused unless he signs a re- ceipt containing a release of all complaints against his officers, no atten- tion whatever will be paid to such release. 2. The Court will consider the situation of the parties in fixing the amount of damages to be awarded. This was a libel for assault and battery. It appeared, beside the evidence of the assault and battery, that a receipt by the libellant, which contained a release of all complaints on his part against his officers, had been signed by him as the only means of obtaining his wages, which were re- fused to him unless this was done. The case came on before Judge Hopkinson for a hearing, on the 22d May, 1841, and was argued by Waln, for the libellant, and Gillou, for the respondent. On the 24th May, 1841, Judge Hopkinson delivered the following opinion : — FEBRUARY SESSIONS, 1841. 423 Whitney v. Eager. In deciding questions of this sort, between the master of a vessel and his men, it has been my endeavor to preserve the ship from the danger to which she would be exposed by the refractory disobedience and turbulence of the crew, and at the same time to protect the crew from cruelty and unnecessary violence on the part of the master. Indeed, one of the most effectual means of securing their submission, even under ill- treatment, is that they s'hall be assured they will receive redress at the end of the voyage for any abuse of the power of the master over them. I have, in a late case, explained the prin- ciples on which my decisions are founded in such cases. I would avoid on the one hand, encouraging frivolous and vexa- tious complaints ; and, on the other, be ready to give adequate redress for real and substantial injuries. To maintain the necessary discipline of the ship, great power is given to the master, and obedience and non-resistance are exacted from the seamen. But the master is not therefore constituted an unrestrained tyrant, nor the sailors made his de- fenceless victims. They are always and everywhere under the protection of the law, whether in the service of their own country, or on the most djstant seas. They must be patient and submissive under suffering, and wait for the season of re- dress, when the same power of the law which has sustained the master in his authority, will make him account for his abuse of it. In this case there has been a clear and gross abuse of au- thority, a wanton cruelty, which neither the law nor common humanity can justify. Not a witness, except the first mate (his aider and abettor), has said a word for the captain, and the mate has been able to tell but a poor story for him. On the other hand, two of the seamen, the cook, the steward, the second mate, and another seaman, Alfred Courcelot, a clear- headed, intelligent young man, brother-in-law to one of the owners, all agree as to the excessive cruelty of the captain in beating the libellant, who has marks of it on his person to this day. The most unaccountable circumstance of the case is the 424 FEBRUARY SESSIONS, 1841. Whitney v. Eager. want of any provocation, much less justification, for this violence. Even the first mate can make out nothing for the defence, except that the libellant did not steer well ; except this, and accidentally, when washing the deck, spilling some water on the captain's new boots, no pretence has been set up for the beating, kicking, and seizing up of the libellant, and the unmerciful lashing inflicted upon him. All the witnesses testify to his peaceable temper and good conduct. As to the receipt extorted from the libellant, as the condi- tion of payment of his wages, by which he was required not only to acquit the owners of any claim for wages, but to release the officers of the ship from all claims and damages ; it has, more than once been decided in this Court, that no attention will be paid to such rele^-ses. An acquittance for the wages is the proper object and office of the receipt to be given on the payment of them ; and to couple it with a release to the officers for all personal wrongs and injuries, especially where the wages are denied without it, will always be regarded as an attempt to impose upon the seaman, and as betraying a consciousness of wrong, and a desire to get rid of it in this way. The libellant in this case refused to sign this paper, until he found he could not obtain his Wages without it. I have been surprised that the owners of vessels do not give some attention in selecting their masters, to the temper and manners of the individual. In passenger ships these are mat- ters of real importance. What can be more disagreeable and disgusting to passengers than to witness daily, or hourly, the indulgence by the master, of a violent and cruel temper, and to hear from him coarse and abusive language, accompanied by vulgar swearing in his intercourse with the crew ? The damages claimed in this libel are $5,000. This is pro- bably as much as the respondent would get in ten years of his life, and more than the libellant could earn in his whole life. This will not do ; we must not become oppressors in our endea- vors to punish and prevent oppression. We must consider the situation of both parties, and while we can imagine^ a case be- FEBRUARY SESSIONS, 1841. 425 Whitney v. Eager. tween parties in which this amount of damages would not be excessive for the same assault, it cannot be a case between the master and mariner of a ship. We must not bring distress and ruin on the one, to redress a wrong to the other ; for the assault complained of, although severe and unjust, has produced no serious and permanent consequences to the libellant. It is enough that the respondent shall receive a lesson to restrain his temper, and to know that whatever his power may be at sea, a greater power is at home, to call him to account for the use he has made of it. This, with a reasonable compensation to the libellant, for his injuries, will fully meet the justice of the case. Decree for the libellant for $100, and costs. DISTRICT COURT OF THE UNITED STATES. (0E2tBrn iistiitt nf f tDnsijliiEiiia. MAT SESSIONS, 1841. WILLIAM BOON AND HENEY L. BOON, TRADING AS WILLIAM BOON AND SON, V. THE CANAL BOAT OR VESSEL CALLED THE HORNET, SAMUEL BISBINS, OWNER. 1. The libel should always show the jurisdiction of the Court. 2. This Court takes jurisdiction of claims for work and materials furnished to a domestic ship, because the law of the State of Pennsylvania gives a lien on the ship for such supplies. 3. Where a canal boat, built and used for service in the interior canals of Pennsylvania, and not in tide water, was hauled on shore and repaired at a part of the River Schuylkill where the tide ebbed and flowed, this Court had no jurisdiction of a claim for such repairs. 4. By the general maritime law no lien is given on a domestic vessel for Trork or materials furnished to her. 5. There can be no suit in rem, unless there is a lien on the thing sought to be charged. 6. When a case comes rightfully into a Court of Admiralty, it is to be con- ducted, tried, and decided, according to the usage and practice of that Court. 7. Where the law of a State gives a general lien on ships for all debts in- curred on their account, this Court will take cognizance, under such sta- tute, of all contracts • • • . . . . . .226 SHORT ALLOWANCE. 1. It is clear that the claim for additional wages under the ninth sec- tion of the Act of 20th July, 1790, is not founded on the mere fact that the crew were put on short allowance, but on the neglect or omission of the master to take on board the quantity and species of provisions required by that Act. Ferrara v. The Talent, . . 216 2. The two circumstances of deficiency in the quantity or quality of the provisions, and a short allowance, must concur in order to en- title the crew to the remedy provided by the ninth section of the Act of 20th July, 1790. Ferrara^. The Talent, . . .216 STATUTES. 1. Under the fifth section of the Act of 13th July, 1832, a surety is INDEX. 619 liable on a bond given for duties under JS200. United States v. Linn^ ......... 307 2. The sovereign power is not bound by general words in a statute, but only when included expressly, or by necessary implication. United States v. Hewes, ...... 307 3. The United States and their debtors are not included in the pro- visions of the Act of 28th February, 1839. United States v. Hemes, ........ 307 4. The repeal of a law by implication and construction of a subse- quent statute, should be so clear as to leave no reasonable doubt that such was the intention of the legislature. It should not be de- duced by an ingenious course of argument, but should appear at once. United States V. Twenty-fioe cases of cloths, S^c, . .356 5. The revenue laws of the United States are to be so construed as most effectually to accomplish the intention of the legislature in passing them ; and do not fall within the rule that penal laws are to be construed strictly, in favor of those who may be prosecuted under them. United Slates y. Twenty-five cases of cloths, ^c, .356 6. When a statute contains an absolute affirmative repeal of an ante- cedent statute, or part of it, then the expiration of the subsequent statute, by its own limitation, will not revive the repealed Act. United States Y. Twenty-five cases of cloths, SfC, . ■ ■ 356 7. The sixty-sixth section of the Act of 2d March, 1799, is in force. United States -v. Twenty-five cases of cloths, S;c., . ■ ■ 356 8. Where the law of a State gives a general lien on ships for all debts incurred on their account, this Court will take cognizance, under such statute, of all contracts or charges of an admiralty or maritime nature, notwithstanding no lien was given therefor by the general maritime law, but not of contracts or charges not of an admiralty or maritime nature, although a lien may be given therefor by such State law. Boon v. The Hornet, . ■ ■ . . 426 9. The term ad valorem, used in the various revenue laws of the United States charging a duty on imports, does not always mean the ac- tual value of the article at the place of exportation. United States V. Clement and Newman, ....•■ 499 10. The 7th section of the Act of 14th July, 1832, directed that goods should be appraised at their actual value at the time of purchase and place of exportation ; the Act of 29th May, 1830, fixed the duty on molasses at five cents per gallon; the 1st section of the (Com- promise) Act of 3d March, 1883, directed that in all cases where duties imposed on foreign imports should exceed twenty per cent, on the value thereof, one-tenth of such excess should be deducted biennially, &c. Molasses being imported under these Acts, the cost of the packages in which it was contained formed a proper item of its value on which to calculate the twenty per cent. But if, in addition to including the value of the packages in that of the molasses, a separate duty had been charged on them, it would '620 INDEX. have been wrongly imposed. United States v. Clement and New- man, ......... 499 And see Construction, Noa. 2, 3, 4, 5, 6. SUNDAY. There is no law to relieve a seaman from working on Sunday. TTlary V. The Washington, ....... 204 SUPERSEDEAS. 1. The effect of a supersedeas, lawfully ordered, is to annihilate a commission of bankruptcy, and to place the bankrupt with his estate and effects in the same situation they would have been in had it never existed. Morris's Estate, ... .70 2. A District Judge of the United States has power to supersede a commission of bankruptcy, by construction or implication from the bankrupt law of the 4th April, 1800, and without the express grant of such power therein. Morris's Estate, . . . .70 3. A supersedeas may be issued after a bankrupt has obtained his certificate. Morris's Estate, . . ... 70 4. An order of supersedeas will annul a commission, of bankruptcy without a formal writ being issued. Morris's Estate, . . 70 5. R. M., a certified bankrupt, died during the continuance of the com- mission, having first devised to his wife all his property, real or personal, which he then possessed or might afterwards acquire. Subsequently M. M., the vrife, died, having first devised all her estate, real and personal, to N., a daughter, and making H. M., a son, her executor. Real property of E. M. being afterwards dis- covered, H. M. had sufficient interest therein to entitle him to pe- tition for, and obtain, a supersedeas of the commission. Morris's Estate, ........ 70 SUPREME LAW. The Bankrupt Law, being supreme, overrides all State legislation, and, therefore, judgments confessed in contravention of that Act are void, and not liens on the bankrupt's property, although they may be valid by the State laws. Atkinson v. Purdy, . . 551 SURETY. Under the fifth section of the Act of 1 3th July, 1832, a surety is liable on a bond given for duties under g200. United Slates v. Linn, . 307 UNDERVALUATION. Where goods have been passed at a custom-house at the invoice valu- ation, and a suit is subsequently commenced against them, on the ground of their being fraudulently undervalued in the invoice, such undervaluation may be shown by evidence on the trial ; and the INDEX. 621 United States are not bound by the action of the revenue officers in assenting to such inToice valuation. United States v. Twenty- five cases of cloths, Sfc, ...... 356 UNITED STATES. 1. It seems that -where one of a partnership is indebted to the United States, and an assignment is executed of the joint and several pro- perty of the partners, the United States are not entitled to a pre- ference over the joint creditors for the payment of such individual debt out of the assets of the partnership. United States y. -Evans, . 60 2. The United States and their debtors are not included in the pro- visions of the Act of 28th February, 1839. United States v. Hewes, 307 USAGE. An usage or custom of trade may always be waived by, and cannot vary a positive stipulation. Knox v. The Ninetta, . . . 534 VOLUNTARY PAYMENT. 1. Duties wrongly imposed, if paid by the importer voluntarily and ■without protest or remonstrance, cannot be recovered from or set- off against the United States. United States v. Clement and Newman, 49" 2. Payment to a public ofEcer, if unaccompanied by remonstrance or protest, -which need not be written, is a voluntary payment. United States V. Clement and Newman, ..... 499 3. Payment or satisfaction of a judgment obtained bond, fide and with- out collusion, and on which execution may at once be issued, can- not be considered a voluntary payment in fraud of the Bankrupt Law, if by such payment the debtor is enabled to continue his busi- ness. Exp. Garwood and Exp. Potts, . 516 VOYAGE. 1. If there is any ambiguity, uncertainty, or obscurity, in the ship- ping contract, especially in the description of the voyage, the con- struction most favorable to the seamen will be adopted. Jansen v. TheHeinrich, . . . . . • • -226 2. Where seamen enter upon a voyage, without signing shipping arti- cles, an implied contract is presumed, which binds them to re- main with the ship till the voyage is terminated. Jansen v. The Heinrich, ........ 226 8. Where seamen ship for an indefinite period, they are at liberty to leave the ship, after the termination of any particular voyage, and the discharge of cargo at the port of delivery. Jansen v. The Hem- rich, ..•••••• 4. Where the owner of one-eighth of a schooner disapproved of a voyage sanctioned by the other part owners, the Court ordered the other part owners to secure the dissentient in double the value of his share. Fox v. The Lodemia, . . ■ ■ • 271 226 622 INDEX. WAGES. 1. Where a Tessel is seized by revenue officers, the mariners dis- charged, the vessel sold by her owner during seizure, and afterwards liberated, the lien of the mariners for wages is not destroyed. An- derson V. The Solon, . . . . . . .17 2. It is not such embezzlement as will forfeit a mariner's wages, if he sells part of the cargo, by the direction of the mate, during the per- manent absence of the master, in order to procure necessary pro- visions for the vessel. Anderson v. The Solon, . . .17 8. Where there is no entry, in the log-book, of the absence of a sea- man without leave, and he is received on board again, his wages cannot be forfeited under the Act of 20th July, 1790. Hart^. The Otis, ......... 52 4. There can be no specific forfeiture or deduction for misconduct which is not specially charged in the answer. Hart v. The Otis, . 52 5. If seamen leave the vessel, against orders, to go before the consul and complain of their treatment, it is not desertion, and will not justify their imprisonment, nor the deduction, from their wages, of the amount paid other hands in their places while so imprisoned. ffart V. The Otis, . . . . . . .52 6. Where a seaman, shipped for the voyage, is so severely chastised, with an improper weapon, because of his insolence, as to be neces- sarily left behind at a foreign port, he is entitled to his wages to the time of the vessel's arrival at the last port of delivery; but not to the benefit of the Act of 28th February, 1803. Brown v. The Independence, . . , . . . . .54 7. If a seaman be left in a foreign hospital, sick, and, on his cure, rejoins the vessel, he is entitled to his wages at the rate originally contracted for, where no new contract is shown ; and notwithstand- ing the master has complied with the requirements of the Act of 28th February, 1803. Shakerly v. JPsdrick, . . . .63 8. Where a vessel is captured and condemned, wages are due the seamen up to the date of condemnation. Vandever v. Tilghman, . 66 9. Where a vessel was condemned by the French government, in 1808, and the representatives of the owner recovered a portion of their claim on that account under the convention of 4th July, 1831, with France, the fund is liable for wages due the seamen, at the time of condemnation ; without deduction for the expenses of recovery, or abatement in the same proportion as the original claim. Vandever v. Tilghman, . . . . . . . .66 10. Where a seaman, shipped for a part of a voyage, is discharged at the termination of his engagement, without payment of wages ; if he makes every exertion to follow up the vessel, and, immediately he meets her commences suit against her, his lien for wages is not destroyed though the vessel has made one or more voyages since his discharge. Freeman v. The Jane, ..... 178 11. A seaman is entitled to wages up to the actual sale of the vessel, INDEX. 623 and they do not cease at the date of the advertisement of the sale. Lang v. Holbrook, . . . . . . .179 12. If seamen, absent from their ship, in a foreign port, without leave, attempt to return to her, by night, not saying who they are or what they want, it is not such a return as will restore to them their right to wages. Ulary v. The Washington, .... 204 13. It is clear that the claim for additional wages under the ninth section of the Act of 20th July, 1790, is not founded on the mere fact that the crew were put on short allowance, but on the neglect or omission of the master to take on board the quantity and species of provisions required by that Act. Ferrara v. The Talent, . 216 14. The two circumstances of deficiency in the quantity or quality of the provisions, and a short allowance, must concur, in order to en- title the crew to the remedy provided by the ninth section of the Act of 20th July, 1790. Ferrara v. The Talent, . . .216 15. Where a vessel is abandoned at sea, the crew, shipped for an in- definite period, have a lien on her, in the hands of salvors, for their wages due at the last port of delivery before the abandonment. ffoy V. The Stewart, . . . . . . .218 16. It is the settled law of this Court that the representatives of a sea- man dying on the voyage, in the service of the ship, are entitled to his wages for the whole voyage. Johnson v. The Coriolanus, , 239 WAIVER. 1. Any right may be waived ; and, where that right is a severe penal forfeiture, a waiver will be considered with favor to the offender. Lang v. Holbrook, ....... 179 2. An usage or custom of trade may always be waived by, and can- not vary a positive stipulation. Knox v. The Ninctta, . . 534 WORK AND MATERIALS. 1. Where a chain cable is loaned, by its maker, to a master, for the use of his vessel, under an agreement to be returned when an- other chain has been made and delivered on board ; and, on such delivery of the second chain, the first is promised to be returned at a fixed time, before which the vessel sails, and the chain is never afterwards returned ; the vessel is properly chargeable with the price of both chains. Sarehet y. The Davis, . . . 185 2. By the general maritime law, a lien, for materials furnished, exists against foreign ships, and those of other States of the Union, which may be enforced in the Admiralty independently of any bottomry bond. Sarchet v. The Davis, ...... 185 3. By the general maritime law, no lien is given on «, domestic vessel for work or materials furnished' to her. Boony. The Hornet, . 426 4. This Court takes jurisdiction of claims for work and materials fur- nished to a domestic ship, because the law of the State of Pennsyl- 624 INDEX. vania giyes a lien on the ship for such supplies. Boon v. The Hornet, ........ 426 5. The law will not suflfer a mechanic's claim on a Tessel, for work and materials furnished, to be defeated on slight grounds, but will be astute to prevent it. Cole v. The Atlantic, . . . 440 6. A lien for work and materials is not barred by the lapse of two years, unaccompanied by culpable or unreasonable neglect, but will bind the vessel after that time, even in the hands of a bond fide pur- chaser. Oole V. The Atlantic, ..... 440 7. Admiralty Courts have jurisdiction to enforce the claims of mecha- nics and material men for work and materials furnished in fitting vessels for maritime service : I. Where such repairs have been made, or materials furnished, to a foreign ship, or to a ship in the ports of a State to which she does not belong ; and II. In case of a domestic ship, when by the local laws of the State where the repairs are made, or materials furnished, the creditor has a lien on the vessel. Tree v. The Indiana, . . 479 8. A vessel was enrolled as belonging to a port in New Jersey, and a share in her subsequently sold to a person in Philadelphia, who thereupon became managing owner, and obtained a new enrolment for her as belonging to Philadelphia ; a libel being filed in this Court for work and materials furnished both before and after the new enrolment, it was decided that as to the charges which accrued before the new enrolment the Court had jurisdiction over her as a foreign vessel, but after that enrolment she became a domestic vessel, and as the lieu which the local law of Pennsylvania gave, for work and materials furnished, had been, under that law, divested by her making subsequent voyages, this Court had no jurisdiction as to the charges which accrued subsequently to the second enrol- ment. Tree v. The Indiana, ...... 479 THE END.