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Penhallow v. Doane's Administrators. 3 D.

they directed notice to be given to the parties who appeared before that court, it seems evident that they had notice. What then is the effect of this ? Was any thing further necessary to suspend the decrees of the State courts ? An inhibition is, indeed, worded in a manner naturally leading to the supposition that that instrument was necessary to effect a suspension ; but this, I think, cannot be the case; for it is observable that, by the practice, an interval of three months is allowed before the inhibition is sued out, in which time, if nothing

had antecedently suspended the sentence, it might be carried [ * 115 ] * into complete effect, and everybody be justified in their

conduct, as paying obedience to a decree continuing in full force. The inhibition may be intended only as a more formal direction to cease farther proceedings, when yet they may have been inhibited before ; it has a farther use also, for it appoints a day for the attendance of the parties. Conformably to this idea it is said, in Domat, that the appeal suspends the decree; but a distinction is attempted here; it is admitted that an appeal allowed by the inferior court suspends, while an appeal received by a superior court, is denied to have that effect. But, according to Domat, it works a suspension, even against the will of the inferior judge, and it would be very strange if the suspending operation of an appeal, to a judge who has an authority to reverse, should depend upon the consent of the inferior judge. But if the sentences of the State courts were indeed suspended, no person had authority to act under them; and if any do, he takes upon himself the consequences. Besides, if George Wentworth had innocently and without notice, distributed the money which came to his hands, should not this have been shown to the court of appeals? If that had been done, perhaps, after reversing the decrees of the State court, instead of decreeing restitution, they might have only decreed that the owners should pay to the appellants the moiety of the sales by them received. But they have decreed restitution specifically; and if this court should so model the decree of the circuit court, as to exonerate Mr. Wentworth as to the moiety of the money by him received, it will substantially alter the decree of the court of appeals; and yet we say, that the decree now is to be bottomed on that of the court of appeals, which is now to be supposed right, and that for that reason it was erroneous in the circuit court to carry interest farther back than from the period of reversal, and in this way give damages which were not intended by the court of appeals.

The decree of the circuit court appears now, I confess, to be wrong, in that it subjects all the defendants, indiscriminately, to the payment of all the damages. In the original libel, they had indeed Penhallow v. Doane's Administrators. 3 D. joined, but it was in right of several interests, which I think ought to have been distinguished in the decree; justice obviously requires this; so obviously, that it is enough to state the case to obtain the mind's assent to the propriety of distributive damages, instead of those which the decree contemplates. I will only say further, that I have no remembrance of having had this point brought to my view at the circuit court, and it certainly did not occur to myself; but if any thing was said upon the point, and I, with deliberation, then preferred the decree as it stands, I am clearly now of a different opinion. Upon the whole, I think the decree of the * cir- [ * 116 ] cuit court will stand as it ought, when corrected by reducing the damages in the manner proposed, and when so reduced, by proportioning them among the then defendants, according to their distinct interests.

Cushing, J. The facts of this case being already fully stated by the court, I shall go on to inquire whether the decree of the circuit court ought to be reversed for any of the errors assigned.

The first is, that the court of appeals, which made the decree of restoration, had not jurisdiction of the cause.

In answer to this, I concur with the rest of the court, that the court of appeals, being a court under the confederation of 1781, of all the States, and being a court for “determining finally, appeals in all cases of capture," and so being the highest court, the dernier resort in all such cases, their decision upon the jurisdiction and upon the merits of the cause, having heard the parties by their counsel, must be final and conclusive to this and all other courts; to this, as a court of admiralty, because it is a court of the same kind, as far as relates to prize, and without any controlling or revisionary powers over it; to this, as a court of common law, because it is entirely a prize-matter, and not of common law cognizance. The cases, therefore, cited to show that the common law is of general jurisdiction, and that the court of king's bench prohibits, controls, and keeps within their line admiralty courts, spiritual courts, and other courts of a special, limited jurisdiction, do not, I conceive, touch this case.

It is conceded by all, that the decision of a court competent is final and binding. Now, if the court of appeals was, under the confederation of all the States, a court constituted “for determining finally appeals in all cases of capture," it was a court competent; and they have decided. Again, the admiralty of England gives credence and force to the decisions of foreign courts of admiralty; why not equal reason here?

It is true, the courts of common law there will not allow a greater

Penhallow v. Doane's Administrators. 3 D.

latitude to the jurisdiction of foreign courts of admiralty than to their own; as it seems natural and reasonable they should not; for instance, holding plea of a contract made entirely at land, which seems to have been the substantial ground of a prohibition, in the case cited, respecting the decree in Spain.

If the decree of the court of appeals must be considered as bind. ing, as it must, or there may never be an end to this controversy ; that will carry an answer to several other errors assigned, namely, the third, fifth, and seventh, respecting the cause not being regularly

before congress or the court, and respecting the circuit court [ * 117 ] not entering into the merits, and to * some other particular

exceptions; as, that appealing to the superior court of New Hampshire was a waiver of the right of appeal to congress; if that · appeal was consistent with the resolve of congress, which only provided an appeal to congress in the last resort, it was not a waiver. Again, it is said there ought to have been a jury at the court of appeals'; but that, clearly, was not the intent or resolve of congress, nor of the confederation, nor correspondent to the proceedings in courts of admiralty, even where trials by jury are used and accustomed in other matters ; nor was it thought a proper or necessary provision in the present constitution, which has been adopted by the people of the United States.

As to the original question of the powers of congress respecting captures, much has been well and eloquently said on both sides. I have no doubt of the sovereignty of the States, saving the powers delegated to congress, being such as were “ proper and necessary” to carry on unitedly the common defence in the open war that was waged against this country, and in support of their liberties, to the end of the contest.

But, as has been said, I conceive we are concluded upon that point by a final decision heretofore made.

The second exception in error is, that the sentence of the court of appeals was void by the death of Mr. Doane.

That fact does not appear upon the record of the court of appeals, and I think we cannot reverse the decree in this incidental way, if it could be done upon a writ of error. If it was pleadable in abatement, it ought to have been pleaded or suggested there, by the oppo. site party.

On the contrary, it is implied by the record that Doane was alive, otherwise he could not have been heard by his counsel as the record sets forth, for a dead man could not have counsel or attorney. On the other hand, the letters of adrninistration imply that he was dead at the time; but those letters were not before the court, and there

Penhallow v. Doane's Administrators. 3 D.

fore could not be a ground for their abating the suit, if it was abatable at all for such a cause. Here seems to be record against record as far as implications go, and I take it to be an error in fact, for which, by the judicial act, there is to be no reversal. Upon this head, a case in Sir Thomas Raymond is cited by the counsel for the plaintiff in error, of trover by five plaintiffs; one dies, the rest proceed to verdict and judgment, and adjudged error, because every man is to recover according to the right he has at the time of bringing the action, and here each one was not at the time of bringing the action entitled to so much as at the death of one of the plaintiffs.

But a case in Chancery Cases, p. 122, is more in point, where money was made payable by the decree to a man that 'was dead, and yet adjudged, among other things, no error. [ * 118 ] But another matter which seems well to rule this case is, that being a suit in rem, death does not abate it.

So say some books, and I do not remember to have heard any to the contrary. It does not affect the justice of the cause; it makes no odds to the plaintiff in error whether the money is to be paid to Colonel Doane, being alive, or to his legal representatives, if dead.

The fourth exception that damages are not prayed for, yet decreed, is answered by a prayer for general relief.

The eighth exception is, that the district and circuit court possessed not admiralty jurisdiction, and that the circuit court have no right to carry the decree into execution.

If courts of admiralty can carry into execution decrees of foreign admiralties, as seems to be settled law and usage, and if the district and circuit courts have admiralty powers by the law and constitution, as was adjudged and determined by this court last February, I think there can be no doubt upon this point.

Another question of consequence, is whether Mr. George Wentworth, being agent for the captors, and having paid over, can be answerable jointly with the other libellants for the whole, or in any way for any part. If it was simply the case of an agent regularly paying over, I should suppose he could not justly be called upon to refund. But it seems he was an original libellant, a party through the whole course of the suit; and an appeal being claimed in time at the court and term, at which the libellants obtained the decree, of which therefore he had legal notice, the appeal, if a lawful one, in my opinion, suspended the sentence, and must make him answerable for whatever moneys he should receive under that decree in case of reversal, every man being bound to take notice of the law at his peril.

It is suggested that an inhibition was necessary to take off the force of the sentence. An inhibition, according to the form of one Penhallow v. Doane's Administrators. 3 D. produced, which issued in England last July, near four months after the trial and appeal at New Providence, inhibits the judge and the party from doing any thing in prejudice of the appeal, or of the jurisdiction of the court appealed to, and cites the party to appear and answer the party appellant at a certain time and place. The citation to the party to appear and answer at the proper time and place, I take to be the most substantial part of the process; the inhibitory part to be rather matter of form, or in pursuance of the suspending nature of the appeal, and as a further guard and caution against misapplying the property. For it appears to me absurd

to suppose that an inhibition taken out seven or eight [ * 119 ) months after the * appeal (nine months being allowed for

the purpose) should be the only thing that suspended the sentence, leaving the judge below and the party all that time to carry the sentence into complete execution.

The judical act, in providing an appeal in maritime causes to the circuit court, contains no hint of an inhibition as necessary to suspend the sentence. Domat is express, that an appeal has that effect, and I believe other civil law writers.

The rejection of the appeal, if unwarranted, could not take away the right of the citizen.

There does not appear any thing actually compulsory upon Mr. George Wentworth to pay the money, except what may be supposed to be contained in the decree appealed from, the force of which was suspended. All this matter might have been offered at the court of appeals, where the parties were fully heard, and if offered, was no doubt, involved in their decision.

It is said, if I understood the matter right, that there ought to have been a monition from the circuit court to Mr. Wentworth, to bring in what he had in his hands.

I see no necessity for a monition exactly in that form. There was a monition to come in and answer the libellants upon the justice of the cause, as set forth; he came in and had an opportunity to defend himself, and the question was, whether he was answerable upon the circumstances of the case, which was determined by the court.

By the cases in Durnford and East, as well as from other books, it is clear that the admiralty has not only jurisdiction in rem, but also power over the persons of the captors and all those who have come to the possession of the proceeds of the prize, to do complete justice as the case requires, to captors and claimants.

But I cannot conceive why the decree of the court of appeals is not conclusive upon Mr. George Wentworth as much as upon the other libellants.

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