Penhallow v. Doane's Administrators. 3 D. That on the 12th September, 1783, this case again came before the court of appeals, established under the articles of confederation; which, after a full hearing and solemn argument by the advocates on both sides, passed a definitive decree in these words, namely: *"It is hereby considered, and finally adjudged and decreed [* 100 ] by this court, that the sentences or decrees passed by the inferior and superior courts of judicature for the county of Rockingham, in the above cause, so far as the same have relation to the property specified in the claims of Elisha Doane, Isaiah Doane, and James Shepherd, be, and the same are hereby revoked, reversed, and annulled, and that the said property specified in the said claims, be restored to the said claimants respectively; and it is hereby ordered, that the parties to the appeal each pay their own costs, which have accrued in the prosecution of the said appeal in this court." In this case considerable difficulty has arisen from the peculiar manner of pleading, which is said to be warranted by local practice, but which certainly has very much contributed to embarrass the question in the cause. There is neither a complete demurrer, nor I conceive a regular issue; and it may be deemed doubtful, whether what is termed a plea, ought to be considered as a plea or an answer. I had, therefore, at first, strong doubts whether there was sufficient matter before us to ground a final decree; but upon reflection it seems to me, that as the case has been argued, on both sides, upon a supposition that a final decree could be made; as there has been no application on either, for the examination of testimony, but the hearing took place without objection upon the pleadings as they stand, and consequently, we can regard the facts only as stated on the record; as an express consent that the cause should be decided on this footing, would undoubtedly have been binding, and the circumstances in this case evidently prove an implied one; I think the pleadings, as they stand, will afford sufficient foundation for a decree, especially according to those principles of practice which, we are told, prevail in the State from which this record comes a practice which, until altered, we undoubtedly ought to pursue, when it is not substantially inconsistent with justice. Several objections have been offered, admitting the validity of the final decree, in respect to the authority of the court upon the points then before them, which I will consider in the best manner in my power. 1. It is objected that the appellant, Doane, was dead before the final decision which was given in September, 1783, and this it is alleged, though not appearing on the face of the record, does appear from the letters of administration produced by the libellants, which letters are dated in February, 1783. Penhallow v. Doane's Administrators. 3 D. Admitting that the courts are bound to inspect the date of the letters, and to regard that date as conclusive, and to infer the fact accordingly from it; several answers have been given to this objection; either of which, if valid, is decisive. [ * 101 ] *1. That the proceeding in question was a proceeding in rem, and upon such proceeding in civil law courts, the death of a party does not abate. I incline to think the law is so, but as my opinion is clear on other points in answer to the objection, I avoid giving an opinion on this. 2. That admitting the decree for this cause to be erroneous, it can only be avoided by a solemn proceeding in the nature of a proceeding in error, and cannot be inquired into in this collateral way. Upon this point I am clear that the decree was not rendered absolutely void, but must stand regularly good till reversed for this error, if it be one. So the matter stood while the court of appeals was in being. If the appellees could have avoided the decree for this error, they might have applied to that court to have reviewed its decree upon this suggestion. The expiration of the court is no reason why the law in this particular should be considered as changed. It is true, in many cases where there has been error in a suit, and this has affected the right of a person not a party, this error has been admitted to be shown in a suit where the point came collaterally in question. But it has never been permitted to a party who might have set aside the original judgment for error. I speak now of proceedings at common law. The same reason, I think, applies in this case. It does, indeed, seem reasonable, that if one party can proceed in the district court to enforce the decree, the other party may to impeach it. But then this ought to be done in the same mode as in the other court, and that for a very substantial reason. Because, when that suggestion is the sole ground of inquiry, the other party may come prepared to show many things to do away its force. He may, for aught I know, be permitted to show a mistake in the date of the letters. He may show an actual knowledge of the fact by the other party previous to the decree, and an acquiescence in it. He may possibly show that the administrators were in fact before the court, though this does not appear on the face of the proceedings. As the inquiry in this case is into a fact, perhaps any thing of this kind may be shown, and if so, there surely ought to be an opportunity of doing it. 3. There seems great reason in what was alleged at the bar, that though it might have been competent for the administrators, had the decree been against Doane, to have shown this fact for error, because neither the principal nor they had any opportunity of supporting Penhallow v. Doane's Administrators. 3 D. their right before the court, when the decree was given, the former being dead, and the latter not being called upon, yet that it is not competent for the appellees, who were before the court, were heard, and cannot allege, had that been the fact, that they had sustained any prejudice by their being heard ex parte. It is a rule at common law (the reason applies in [*102 ] equity and other civil law cases) that if a party can plead a fact material to his defence, and omits to do it at the proper time, he can never avail himself of it afterwards. They had a day in court to plead the death of the appellant. If they say they did not know of it, the same might be alleged in any case at common law, where we know it will not avail. The law rather chooses that a party should incur a risk of this nature than leave a door open to endless litigation upon pretences, the truth of which it is very difficult to discover. 4. This in an error in fact, and in my opinion, it was a powerful argument, that if we cannot reverse a decree even of a district or circuit court for any error in fact, we have no ground to set aside the solemn and final decree of a court that has expired, for such an error. The argument, in my opinion, is altogether a fortiori. II. The death of Doane has been alleged for another purpose. It is said that the decree is to restore to Elisha Doane, which was impossible, because Elisha Doane was not then in being. Admitting that upon this record we are to take judicial notice that Doane was dead at the time of pronouncing the decree, in which I am by no means clear, yet if this was the real reason why the plaintiffs in error had withheld the property or its proceeds, they might themselves have said so. They have not, and as each party generally makes the best of his own case, we are to presume that did not in fact constitute their reason. In this case it could be of no avail, but at the utmost to prevent the allowance of interest until a demand actually made. It never could destroy the whole beneficial effect of a decree given in rem, and when the parties who make the objection were in court, and parties to the very decree complained of. I think nothing can be more evident than that if the decree be not totally void, the administrators are entitled to the benefit of it, at least until it is set aside for error, if there be any error in it, and such a remedy is now practicable. If a scire facias was necessary before execution could have been obtained out of the court which passed the decree, it could be for no other reason than that the other party might have an opportunity to contest the validity of the letters, and the existence of the administration, if any such objection could be supported. Such an objection might have been made here. It has not been made. Penhallow v. Doane's Administrators. 3 D. There is, therefore, I conceive, no principle of law or justice which forbids giving effect to the decree upon this ground. [* 103 ] * III. Another objection is, that the cause was not regularly brought up to the court of appeals, and proceeded on, agreeably to the resolutions of congress. There does not appear any ground for this objection in point of fact. But I am clear that this is a point not now inquirable into. When a court has final and exclusive jurisdiction in a case, and has pronounced a solemn judgment, every other court must presume that all their previous proceedings were right, of which indeed they were the only competent judges. IV. It is alleged, damages were not prayed for by the libel. It is a sufficient answer that there is a prayer for general relief. And so little do I think of this objection, and so much of the duty of a court, unaided by formal applications, where there is a substantial one, that I am strongly induced to think, if a case proper for a specific relief was laid before a civil law court, and the direct contrary to the proper relief was prayed for, yet the court even in this case would be justified in granting the relief that might be properly afforded, if the party who had committed the mistake consented to it; without that indeed it might be improper, for no court ought to force a benefit on a party unwilling to receive it. These objections being all got over, which were urged against any relief whatsoever, it is necessary to consider the particular objections against the relief actually afforded. And here, I think, very formidable objections occur. I think the decree erroneous in these particulars: 1. In decreeing interest for the time previous to the date of the decree in 1783. 2. In granting full damages against all the parties, without distinguishing between the owners to whom one half was distributed, and the agent who received the other half for the benefit of the officers, mariners, and seamen. 3. In making George Wentworth, the agent, personally liable for any part. 1. As to the first point, as this libel proceeds only, and can be supported, as I conceive, upon no other ground, upon the principle of enforcing the decree of September, 1783, so that the libellants might recover such benefit from it as the nature of the case could admit, their case is not to be made better or worse, as to the original right, than as the court of appeals decided it. The court of appeals might have decreed satisfaction for the detention, but they did not. They did not even decree costs, but ordered Penhallow v. Doane's Administrators. 3 D. each party to pay his own costs. These things were altogether discretionary in the court. That was the proper court to judge, whether any damages should be allowed for detention. If the decree is to be final and conclusive as to the subject- [* 104 ] matter, it must be so as completely in respect to the deten tion which formed one part of the case, as to the restoration which formed the principal object of it. I should indeed have had some doubts as to the subsequent interest, had it appeared that the defendants had been unable to comply substantially with the decree, owing to the death of Doane, and the want, had that been the case, of a subsequent demand by the administrators. But as that is not alleged, and they set up their whole defence upon the point of right merely, we are not to presume that those circumstances, if the administrators did not make a demand, with respect to which nothing appears, had any weight in inducing their non-compliance with the decree. 2. I am of opinion that damages against all the defendants, jointly, ought not to have been given. We are to look at substance, not form. There were in effect two decrees, originally, one half of the value of the property to one party, the other half to another. The reversal of the decree ought to affect the decree itself in the manner in which it was given. Consequently, each party ought only to be required to restore what he was adjudged to receive. The case of joint trespasses stated at the bar, does, in my opinion, by no means, apply. The privateer in question had a lawful commission. In the execution of such an authority difficulties often arise. Where they happen, bona fide, the master is considered in no fault, and neither he nor his owners made accountable even in case of a mistaken seizure, but for restoration, and, at the utmost, costs. In case of gross misbehavior, not only costs, but damages will be allowed by the court of prize. It seems now to be settled that they have exclusive jurisdiction on all such subjects. As not even costs were allowed in this case, we are to infer that the seizure was, primâ facie, innocent; consequently, if a principle of the common law, deemed by many highly rigorous, and founded perhaps rather on the forms of proceeding than on strict justice, if those forms did not interfere, could be applied to a case arising in a court not only authorized, but bound to distinguish between a mere mistake and a wanton abuse of power, there is no foundation for such an application, in fact, in the present instance. As owners are in all instances made jointly liable, ex contractu, and their respective shares are matters of private cognizance, so that they in all instances appear jointly before the court, and a payment |