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Moodie v. The Ship Phæbe Ann. 3 D.

struction and validity of the act of congress, under which the defendant justified, being involved in the decision of the state court.

* Two leading questions were made in this case. 1st. [ * 310 ] Whether the plea was a sufficient bar to the action ? particularly on the ground of the third cause assigned upon the demurrer; as the defendant only alleged Arnold's old bond to be unpaid on the 5th of November, whereas he admitted a tender of a bond for the duties on the 7th of November. And 2d. Whether the superior court, on whose judgment the writ of error was brought, or the general assembly, was the highest court of law or equity of the State of Rhode Island, in which a decision of the fact could have been had ?

The first question was argued at the last term, by Pringle and Dexter, for the defendants in error, and by Lee, attorney-general, for the plaintiff in error, but the court declaring it to be unnecessary to give any opinion on the principal case, till it was decided whether the record was regularly before them, directed the second question to be discussed at the present term; when Lee, attorney-general, again argued for the plaintiff in error, and Ingersoll, for the defendant.

*The cause was held under advisement, till the 8th of | * 3181 August, when the chief justice delivered the following decision on the point last argued.

BY THE COURT. We are clearly of opinion that the superior court of Rhode Island, on whose judgment this writ of error is brought, is the highest court of law of that State, within the mean. ing of the twenty-fifth section of the judicial act. The general assembly might set aside, but they could not make, a decision.

The chief justice then delivered the opinion of the court on the first point; in consequence of which the judgment of the superior court of Rhode Island was reversed, and the judgment of the inferior court was affirmed.

* Moodie v. The Ship PAEBE ANNE.

[*319]

3 D. 319.

Under the nineteenth article of the treaty with France, a privateer has a right to make

repairs in our ports. The replacement of her force is not an augmentation of it.

* The laws of Rhode Island, bearing on the second question, are in the notes to 3 D. 811, &c.

Grayson v. Virginia. 3 D. Error from the circuit court for the district of South Carolina.

The Phæbe Anne, a British vessel, had been captured by a French privateer, and sent into Charleston. The British consul filed a libel, claiming restitution of the prize, upon a suggestion that the privateer had been illegally outfitted, or had illegally augmented her force within the United States. On the proofs it appeared that the privateer had originally entered the port of Charleston, armed and commissioned for war; that she had there taken out her guns, masts, and sails, which remained on shore until the general repairs of the vessel were completed, when they were again put on board with the same force, or thereabouts; and that on a subsequent cruise the prize in question was taken. The decrees in the district and circuit courts were both in favor of the captors; and on the return of the record into this court, Reed, having pointed out the additional repairs, argued generally on the impolicy and inconveniency of suffering privateers to equip in our ports.

Ellsworth, C. J. Suggestions of policy and conveniency cannot be considered in the judicial determination of a question of right; the treaty with France, whatever that is, must have its effect. By the nineteenth article it is declared, that French vessels, whether public and of war, or private and of merchants, may, on any urgent necessity, enter our ports, and be supplied with all things needful for repairs. In the present case the privateer only underwent a repair ; and the mere replacement of her force cannot be a material augmentation, even if an augmentation of force could be deemed, which we do not decide, a sufficient cause for restitution.

BY THE COURT. Let the decree of the circuit court be affirmed.1

3 D. 285.

[ * 320 ]

* GRAYSON v. VIRGINIA.

3 D. 320.

Process against a State is to be served on the chief executive magistrate and the attorney

general of such State. A subpæna in equity to a State is to be served sixty days before the return day, and if the

State do not appear on the return day the plaintiff may proceed ex parte.

1 See 3 D. 285. Geyer et al. v. Micheil et al. and the ship Den Onzekeren.

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Bill in equity. The service of the subpæna in this case being proved, Lewis moved, at the last term, that a distringas might be awarded, in order to compel the State to enter an appearance; arguing, from the analogy between a State and other bodies corporate, that this was the proper mode of proceeding. The court, however, postponed a decision on the motion, in consequence of a doubt, whether the remedy to compel the appearance of a State, should be furnished by the court itself or by the legislature. And, in the present term, Lewis argued, that the court was competent to furnish all the necessary means for effectuating its own jurisdiction.

On the 12th of August, the chief justice delivered the following opinion:

By the Court. After a particular examination of the powers vested in this court, in causes of equity, as well as in causes of admiralty and maritime jurisdiction, we collect a general rule for the government of our proceedings; with a discretionary authority, however, to deviate from that rule, where its application would be injurious or impracticable. The general rule prescribes to us an adoption of that practice which is founded on the custom and usage of courts of admiralty and equity, constituted on similar principles; but still, it is thought, that we are also authorized to make such deviations as are necessary to adapt the process and rules of the court to the peculiar circumstances of this country, subject to the interposition, alteration, and control of the legislature.

We have, therefore, agreed to make the following general orders; and the counsel, in the present case, will take his measures accordingly.

1. Ordered, That when process at common law, or in equity, shall issue against a State, the same shall be served upon the governor, or chief executive magistrate, and the attorney-general of such State.

* 2. Ordered, That process of subpæna issuing out of this [ * 321 ] court, in any suit in equity, shall be served on the defendant sixty days before the return day of the said process; and, further, that if the defendant, on such service of the subpæna, shall not appear at the return day contained therein, the complainant shall be at liberty to proceed ex parte.

Lewis then observed, that the subpæna in this case had been issued on the same principles ; but as the orders could only operate in futuro, he thought it best to withdraw his motion for a distringas, and to pray that an alias subpæna might be awarded, which was, accordingly, done.

4 D. 6; 3 P. 461; 5 P. 284; 12 P. 755.

Wiscart v. Dauchy. 3 D.

WISCART et al. Plaintiffs in Error, v. Dauchy, Defendant in Error.

3 D. 321.

Under the judiciary act, in cases in equity and admiralty, a statement of facts, made by the

circuit court on the record, is conclusive of all the facts it contains, even if all the evidence

comes up in the record. If the decree in an equity cause finds a fact, that is such a statement of it as the judiciary

act requires. An appellate jurisdiction can be exercised by this court only in conformity with such regula

tions as congress prescribes. A writ of error, in contradistinction to an appeal, is the mode prescribed by the judiciary

act, to bring equity and admiralty cases to this court."

Error to the circuit court for the district of Virginia. A bill in equity was filed to set aside certain decrees as fraudulent against the plaintiff, a creditor of the grantor. The record contained a decree, ordering the deeds to be cancelled, and prefaced by a statement, " that the deeds filed as exhibits in this cause." (here followed a description of each deed,) are fraudulent and were intended to defraud the complainant, and to prevent his obtaining satisfaction for a just demand; that the grantee was a party and privy to the fraud aforesaid, and that the said deeds are void as to the complainant: Whereupon it is decreed,” &c.

The questions were, whether a statement of facts by the circuit court in an equity cause is conclusive, and if so, whether this record contained such a statement as the law contemplated. All the proofs came up in the record. The questions were argued by Ingersoll for the defendant in error, and Lee and Du Ponceau for the plaintiff.

[* 324 *ELLSWORTH, C. J. The question, how far a statement of

facts by the circuit court is conclusive, having been already argued in another cause, we are prepared to give an opinion upon that point; but will reserve for further consideration, the objection that the present decree is not such a statement of facts as the law contemplates.

If causes of equity or admiralty jurisdiction are removed hither, accompanied with a statement of facts, but without the evidence, it is well, and the statement is conclusive as to all the facts which it contains. This is unanimously the opinion of the court.

1 The act of March 3, 1803, sec. 2, (2 Stats, at Large, 244,) gave an appeal. See Oliver v. Alexander, 6 P. 243.

Wiscart v. Dauchy. 3 D. If such causes are removed with a statement of the facts, and also with the evidence, still the statement is conclusive, as to all the facts contained in it. This is the opinion of the court, but not unanimously.

Wilson, J. I consider the rule established by the second proposition to be of such magnitude, that being in the minority on the decision, I am desirous of stating, as briefly as I can, the principles of my dissent.

The decision must, indeed, very materially affect the jurisdiction of all the courts of the United States, particularly of the supreme court, as well as the general administration of justice. It becomes more highly important, as it respects the rights and pretensions of foreign nations, who are usually interested in causes of admiralty and mari. time jurisdiction.

It appears however, that two opinions have been formed on this question — how far those facts involved in the investigation of a cause of admiralty and maritime jurisdiction, that were * given in evidence in the circuit court, should also appear [ * 325 ] in this court, on a writ of error or appeal? For my part, I concur in the opinion, that notwithstanding the provisions of the judicial act, an appeal is the natural and proper mode of removing an admiralty cause; and in that case there can be no doubt, that all the testimony which was produced in the court below, should also be produced in this court. Such an appeal is expressly sanctioned by the constitution; it may, therefore, clearly in the first view of the subject, be considered as the most regular process; and as there are not any words in the judicial act restricting the power of proceeding by appeal, it must be regarded as still permitted and approved. Even indeed if a positive restriction existed by law, it would, in my judgment, be superseded by the superior authority of the constitutional provision.

The clauses in the act which more immediately relate to this subject, are the 21st and 22d sections, 1 U. S. Stat. at Large, 83, 84. The material words are these: Sec. 21. “From final decrees in a district court in causes of admiralty and maritime jurisdiction, where the matter in dispute exceeds the sum or value of three hundred dol. lars, exclusive of costs, an appeal shall be allowed to the next circuit court to be held in such district." Sec. 22. “ Final decrees and judgments in civil actions in a district court, where the matter in dispute exceeds the sum or value of fifty dollars, exclusive of costs, may be reëxamined and reversed or affirmed in a circuit court, holden in the same district, upon a writ of error, whereto shall be annexed VOL. I.

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