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Penhallow v. Doane's Administrators. 3 D. to one owner is, in law, a payment to all ; I can discover no principle upon which any discrimination could be properly made in this case, in regard to the different interests and actual receipts of the owners. I think, therefore, the decree in regard to one moiety, ought to be

jointly against all the owners. [* 105] *3. The third error in the decree, in my opinion, is, making

George Wentworth, the agent, liable for any part. I have had considerable doubts on this subject, but upon the fullest consideration I have been able to bestow on it, I think he is not liable. Had he held any of the property at the time of the decree of the court of appeals, he would have been undoubtedly liable. Had he any now, or any of the proceeds in his hands, he would also be liable. Perhaps he might, had he held any of the property or proceeds, after actual notice of the court of appeals taking cognizance of this case. Neither of these facts appears on the face of the record, and as they are of importance, and neither is asserted, neither is to be presumed.

The contrary indeed may be fairly inferred from the statement on the record, and has been candidly acknowledged to be the real truth. He therefore appears in the character of a mere agent, acting avow. edly for the benefit of others, and not for his own; and as he had paid away the money in virtue of a decree of a court, having prima facie authority for the time, to decide whether an appeal did or did not lie; I think he ought not to be ordered to refund. It is alleged that the prayer of an appeal, in a case where an appeal lies, ipso facto, suspends the proceedings, and all afterwards is coram non judice. I cannot admit the doctrine in that extent. Where there are inferior and superior jurisdictions, and an appeal is allowed from the former to the latter, and it is the express duty of the party praying an appeal, to apply in the first instance, to the inferior court, as I conceive it was in this case under the resolutions of congress, which directed an appeal to be prayed for within five days, and security to be taken, I must presume that that court is prima facie to judge whether it is applied for in a proper manner, and whether all the requisites previous to his being fully entitled to it, are complied with. If the court decides in any of these particulars erroneously, it would be absured to say that the party should lose the benefit of his appeal, but in my opinion it would be equally unjust to hold that a party who obeyed the decree of a court, over whom he had no control, should suffer by his respect to the law, which constituted that court, and which must therefore mean to support its decisions in a cause coming within its jurisdiction, while they remain uncontrolled by any superior tribunal. It was shown, that an inhibition in cases of this kind, sometimes at least issues to forbid the court's further proceeding. Can there be a

Penhallow v. Doane's Administrators. 3 D.

stronger proof, that the court had authority de facto, whatever may be said as to its authority de jure, without that interposition. The law never does a nugatory act, and therefore I presume would not forbid the doing of a thing which, if done, is totally and absolutely void. It was said, this was to bring the judge into * con- [ * 106 ] tempt. But if the conduct of the judge who is bound to know his jurisdiction is in the mean time innocent, surely an obedience to him by a party, who is not to be presumed capable of deciding on the jurisdiction, by his own judgment, must be so. George Wentworth, on the face of the whole proceedings, was a mere agent, an attorney in fact, and for aught I can see, as little liable to refund in a case of this sort, as any attorney in fact, or even an attorney at law, to whom money had been paid under a judgment or decree, and who had paid it away to his client. An agent, in cases of this kind, is allowed by law. They are recognized, I believe, in all prize acts. Mariners, whose employment is on the sea, cannot be required without injustice to attend their cases in person. In cases of privateers, the captors are so numerous that the employment of one or more agents on shore seems unavoidable. The law, when it allows a benefit, never intends that it shall be imperfectly enjoyed; therefore in allowing privateering it allows agents. These I consider as nominal parties, and that the real parties are their principals. Now I will suppose that in a common law case an infant sues, in a per. sonal action, by his guardian, and obtains a judgment; the guardian receives the money, and pays it to the infant after he comes of age. The judgment is afterwards reversed. Can the guardian ever be made to refund to the defendant, or must the person who was the infant do it? This case appears to me a very parallel one in all its circumstances. The infant cannot act for himself, and therefore is allowed to act by his guardian. The law takes notice, by allowing agents, that persons concerned in privateers at least cannot do well without them. The guardian is nominally a party, so is the agent; but the infant in the one case, and the principals in the other, are the real parties. The guardian is accountable to the infant for money he received for him, so is the agent to the principal for money he receives. There is, that I can imagine, but one difference that can be suggested between them; that in the one case the judgment is good till reversed, and therefore all lawful acts intermediately done are valid. But the disallowance of the appeal is said to be a nullity, and all subsequent proceedings in that court are void. I admit the consequence, if the law be so. But I have already stated reasons why I think it is otherwise. A court of justice indeed qught, at its peril, to take notice of its own jurisdiction, and it is not

Penhallow v. Doane's Administrators. 3 D.

often that cases of such doubt arise that a judge can be at a loss on the subject. But it may happen, and does sometimes happen, that innocent and serious doubts are really entertained. Is a court, therefore, because its judgments may be finally dissented from by a

superior tribunal, to be considered as flying in the face of [107] the law, so that parties before it shall not * only be protect

ed in disobeying it, but punished for their obedience? If this be the case, the old maxim, cedant arma togæ, will very ill apply to courts of justice. Instead of being the peaceful arbiters of right, and the sacred asylum of unprotected innocence, their very forums will be the seat of war and confusion. I admit, indeed, where there is a conflict of jurisdiction, and the party entitled to a decree is prohibited from obeying it, by a power claiming a superior cognizance, he must at his peril obey one or the other; but this arises from the absolute necessity of the case, because whether the one or the other be right or wrong must depend on a subsequent decision. In this case George Wentworth, before the distribution, received no monition, or any other process from the tribunal alleged to be superior. He could not even be certain that the appellants would carry their application further. I consider him, therefore, justifiable in obeying the decree, which at the time, was compulsory upon him, and for a disobedience to which he might have been committed for a contempt, according to the opinion of the court which pronounced it. The parties still have their remedy against those who actually received the money, or their representatives, if they can be found. They may perhaps be entitled to a remedy under the bond given, when the commission of the privateer was granted. If either of these remedies be difficult or inefficient, that does not make George Wentworth, in point of law, more liable then if they were perfectly easy and clearly effectual. It will be one melancholy instance, in addition to a thousand others, of the distress incident to a doubtful and imperfect system of jurisprudence, which has been since happily changed for one so precise and so comprehensive, as to leave little room for such painful and destructive questions hereafter.

The fourth question is,

Whether this court can now rectify the decree in respect to the parts of it considered to be erroneous, or must affirm or reverse in the whole ?

The latter is certainly the general method at common law, and it has been contended, that as this proceeding is on a writ of error, it must have all the incidents of a writ of error at common law. The argument would be conclusive if this was a common-law proceed. ing, but as it is not I do not conceive that it necessarily applies. Penhallow v. Doane's Administrators. 3 D. An incident to one subject cannot be presumed, by the very name of such incident, to be intended to apply to a subject totally different. I presume the term “ writ of error," was made use of because we are prohibited from reviewing facts, and therefore must be confined to the errors on the record. But as this is a civil law proceeding, I conceive the word “error" must be applied to such * errors as are deemed such by the principles of the [ * 108 ] civil law, and that in rectifying the error, we must proceed according to those principles. In a civil law court, I believe it is the constant practice to modify a decree upon an appeal, as the justice of the case requires; and in this instance, it appears to me, under the twenty-fourth section of the judicial act, we are to render such a decree as in our opinion the district court ought to have rendered. If this was a case wherein damages were uncertain, and wherein for that reason the cause should be remanded for a final decision, (which it does not appear to be, because the libellants in the original suit had a decree in their favor, which is now to be affirmed in part,) yet the damages here are not uncertain, because we all agree that interest ought to be allowed from the date of the decree in September, 1783, upon the value of the property as specified in the report against those who are to be adjudged to pay the principal.

Upon the whole, my opinion is, that the decree be affirmed in respect to the recovery of the libellants in the original action against all the defendants but George Wentworth ; that the libel against him be adjudged to be dismissed, but that there be recovered against the other defendants in the original action, the value of the property they received, as ascertained in the circuit court, with interest from the 17th of September, 1783.

I am also of opinion that the respective parties should pay their own costs.

BLAIR, J. When this cause came before me at Exeter, in New Hampshire, I felt myself in a delicate situation in having a cause of such magnitude, and at the same time of such novelty and difficulty as to have drawn the judgment of men of eminence different ways, brought before me for my single decision. It was, however, a consolation to know, that whatever that decision might be, it was not intended to be final, and I can truly say, it will give me pleasure to have any errors I may have committed, corrected in this court. Two points, and if I mistake not, only two, were brought before me. The first, whether under the description of admiralty and maritime jurisdiction, the judiciary bill gave to the district court any jurisdiction concerning prizes, I decided in the affirmative; and the same decision

Penhallow v. Doane's Administrators. 3 D. having been afterwards made in this court in the case of Glasse and others, I consider that as now settled. The other point was, whether the court of appeals, erected by congress, had authority to reverse the sentences given in the courts of admiralty of the several States; and the source of the objection, upon this point, was the defect of authority in the congress itself. Here, also, my sentence affirmed the jurisdiction.

I have attended as diligently and as impartially as I could, [109] * to the arguments of the gentlemen upon the present occa

sion, to discover if possible how I may have been led astray in the decision of this question; but as the impressions which my mind first received continue uneffaced, (whether through the force of truth, or from the difficulty of changing opinions once deliberately formed,) I will repeat here the opinion which I delivered in the circuit court, as the best method I can take for explaining the reasons upon which it was founded. I would premise, however, that it contains something relative to what had been said at the bar of the circuit court, but which I believe was not mentioned on this occasion.

“ The immediate question is, whether congress had a right to exercise, by themselves, by their committees, or by any regular court of appeals by them erected, an appellate jurisdiction, to affirm or reverse a sentence of a state court of admiralty, in a question whether prize or no prize. If they possessed such an authority, it must be derivative, and its source either mediately or immediately the will of the people; usurpation can give no right. The respondents contend they had no such authority until the completion of the confederation in 1781, but only a recommendatory power; the libellants insist that congress was considered as the sovereign power of war and peace, respecting Great Britain, and that to that power is necessarily inci. dent that of carrying on war in a regular way, of raising armies, making regulations for their discipline and government, commissioning officers, equipping fleets, granting letters of marque and reprisal, the power (now contested) of deciding, in all cases of capture, questions whether prize or not, and every power necessarily incident to a state of war. It is, at least, certain, that the political situation of the American colonies required a union of council and of force, by wise measures to bring about, if possible, a reconciliation with the mother country, on a basis of freedom and security, or if this should fail, by vigorous measures to defeat the designs of their tyrannical invaders; and although this alone cannot suffice for an investiture in congress, of the powers necessary to that end, yet if the powers given be delegated in terms large enough to comprehend this extent of authority, but which may also be satisfied by a more limited con. struction, the supposed necessity for such powers given to a federal

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