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Judge CHASE was absent the whole term, on account of ill health ; and Judge CUSHING was prevented, by indisposition, from attending until the 19th of February.

On the 12th of February, 1806, the Hon. John BRECKENRIDGE was sworn as Attorney-General of the United States, in the place of the Hon. LEVI LINCOLN, resigned.

DOBYNES and MORTON v. UNITED STATES.

3 C. 241.

Under the act of July 11, 1798, (1 Stats. at Large, 594,) a judgment by default taken on a col

lector's bond, the writ not having been served fourteen days before the return day thereof, is erroneous.

ERROR to the district court of the United States for the district of Kentucky. It was an action of debt on a bond given by a collector of the revenue and his sureties, and the error assigned was that a judgment by default had been entered, the writ not having been executed fourteen days before its return day, pursuant to the proviso contained in the act of July 11, 1798, (1 Stats. at Large, 594, s. 14.)

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* Breckenridge, attorney-general, admitted that the judg. [ * 242] ment could not be supported, as there was nothing in the record by which the return of the marshal could be amended, so as to show that the writ had been executed fourteen days before the return day.

C. Lee, for the plaintiffs in error.

Judgment reversed.

Hannay v. Eve. 3 C.

HANNAY v. Eve.

3 C. 242.

A contract not immoral, but in fraud of a war regulation existing when it was made, can

not be enforced, though made between enemies, and a mere stratagem of war.

This was an appeal from a decree of the circuit court for the district of Georgia, dismissing a bill in equity upon demurrer. The bill alleged that a vessel belonging to Cruden & Company, British subjects and assignors of the complainant, sailed from Kingston for New York, during the war between Great Britain and the United States; that having been rendered incapable of reaching her port of destination by tempestuous weather ; that the defendant, who was master of the vessel, stated to the crew and passengers that as congress, by its resolve of the 9th of December, 1781, had enacted, “ that all ships and vessels with their cargoes, which should be seized by the respective crews thereof, should be deemed and adjudged as lawful prize to the captors," the best mode of proceeding for the benefit of the crew and owners would be to seize the vessel and cargo, make the passengers, who were military men of high rank, prisoners of war, sail for the nearest port, and have the vessel and cargo condemned for the benefit and compensation of the crew, and that the residue should remain in the defendant's hands as trustee for the owners. That a written agreement was signed, fixing each man's share, and the crew consented to receive less than they otherwise would, because the residue was to go to the owners; and the vessel was carried into a port in North Carolina and there condemned, and distribution made according to the agreement. Upon demurrer the bill was dismissed.

P. B. Key, for the complainant.

Harper, for the defendant.

[ * 247 ] * MARSHALL, C. J., delivered the opinion of the court.

The essential difficulty in this cause arises from the consideration, that under the resolution of congress, by which the vessel and cargo mentioned in the proceedings were condemned, a sanction is claimed to a breach of trust, and a violation of moral principle. In such a case, the mind submits reluctantly to the rule of law, and laboriously searches for something which shall reconcile that rule with what would seem to be the dictate of abstract justice.

It has been correctly argued by the plaintiff in error, that the cap

Hannay v. Eve. 3 C.

e, and to lengress, and my by

tain was under obligations to the owners, from which, in a moral point of view, he could not be completely absolved. He was bound to save for them the ship and cargo by all fair means within his power; but he was not bound to employ fraud in order to effect the object. The situation of the vessel unquestionably justified her being carried into the port of an enemy, and perhaps, in the courts of England, the libelling of the vessel by the captain and crew, might be construed to be an act which would enure solely to the benefit of the owners; but war certainly gives the right to annoy an enemy by means such as those which were employed by congress, and courts are bound to consider them as legitimate, and to leave to them their full operation.

The agreement to save the ship and cargo, under the semblance of a condemnation, was not, in itself, an immoral act; it was, as has been truly said, a stratagem which the laws of war would authorize, but it was certainly a fraud upon the resolution of congress, and no principle can be more clear than that the courts of the United States can furnish no aid in giving efficacy to it. Congress having a perfect right, in a state of open war, to tempt the navigators of enemy vessels to bring them into the American ports, by making the vessel and cargo prize to the captors, the condemnation of a vessel so brought in amounted necessarily to an absolute transfer of the property, and to a complete annihilation, in a legal point of view, of the title of the owners, and of their * claim upon [ * 248 the captain. Had no communication taken place between the captain and his crew, whereby a portion of the prize money was allotted to him in trust for the owners, which would not have been allotted to him as a captor, in virtue of his station in the vessel, it would have been a plain case of prize under the resolution of congress, and any intention under which the capture was made, whether declared or not, would have been, like other acts of the will, controllable and alterable by the persons who had entertained it. But if, by a contract with the crew, stipulating certain advantages for the owners of the ship and cargo, the vessel has been carried in, when she would not otherwise have been carried in, or a larger proportion of the prize has been allowed to the captain than would have been allowed to him for his own use, a plain fraud has been committed by him, and the question, whether the trust which he assumed upon himself, and under which he obtained possession of the property, can be enforced in this court, is one of more difficulty, upon which a difference of opinion has prevailed. It has been thought by some of the judges, that the contract being in itself compatible with the strictest rules of morality, and being opposed by only a temporary

Montalet v. Murray. 3 C.

and war regulation, which exists no longer, may now be enforced. But upon more mature consideration, the majority of the judges accede to the opinion, that the contract being clearly in fraud of the law, as existing at the time, a law to which, under the circumstances attending it, no just exceptions can be taken, its execution cannot be compelled by the courts of that county to evade whose laws it was made. The person in possession must be left in possession of that which the decree of a competent tribunal has given him.

This opinion seems completely to decide the point made under the treaty of peace. According to it, a debt never existed to which the treaty could apply. No debt was due from the captain to his owners, but in virtue of the confiscation of the ship and cargo; and it has never been alleged that the treaty extended to captures, made during the war, of property in the actual possession of the enemy, what

ever might be the means employed in making them. [* 249 ] * If the allegations of the bill had stated any contract sub

sequent to the condemnation, by which Captain Eve had made himself a trustee, the previous moral obligation might have furnished a sufficient consideration for that contract. But the allegations of the bill are not sufficiently explicit on this point. They do not make out such a case. His declarations appear to have been contemporaneous with the transaction, and only to have manifested the intention under which he acted, an intention which he was at liberty to change.

Judgment affirmed.

MONTALET V. MURRAY.

3 C. 248.

If the plaintiff in error does not appear, the defendant may either have the plaintiff called, and

dismiss the writ of error, with costs, or he may open the record, and go for an affirmance.

MARSHALL, C. J., stated the practice of the court to be, that where there is no appearance for the plaintiff in error, the defendant may have the plaintiff called, and dismiss the writ of error; or may open the record, and pray for an affirmance. P. B. Key, for the defendant, had the plaintiff called.

Dismissed

THE CHIEF JUSTICE also stated, in answer to a question from the clerk, that, in such cases, costs go of course.

Silsby v. Young and Silsby. 3 C.

SARAH and ABIGAIL Sılsby V. Thomas Young and Enoch Silsby.

3 C. 250.

A direction in a will that if the estate shall not be sufficient to pay certain specific legacies

and annuities they shall not abate in proportion, but the deficiency shall be deducted from a certain legacy given to the residuary devisee and legatee, applies to deficiencies arising from losses after the death of the testator.

This was an appeal from a decree of the circuit court for the district of Georgia, dismissing a bill filed by certain specific legatees under the will of Daniel Silsby to subject to the payment of their legacies the general funds and the amount of another legacy to Enoch Silsby. The terms of the will and the facts relied on as a bar, sufficiently appear in the opinion of the court.

Morrell, for the complainants, Harper and P. B. Key, for the defendants.

* MARSHALL, C. J., delivered the opinion of the court. [ * 261 )

This being a suit in chancery, brought by legatees claiming an account, in order to the payment of their legacies, and their bill having been dismissed without an account, the decree can only be supported by showing that there are, in the hands of the administrator, no assets which ought to be applied to the purposes prayed in the bill.

The testator having bequeathed to each of his two sisters, Sarah and Abigail, who are the complainants, the interest on one thousand pounds sterling, and that being in arrears, and assets having come to the hands of his representative, the complainants are certainly entitled to an account unless they have forfeited all pretensions to their their legacies.

* The defendants say they have forfeited their rights, 1 * 262

1st. By a letter, selecting a particular debt in satisfaction of their legacy, which debt is lost.

2d. By their laches.

The better to understand the correspondence, which is relied upon, it must be recollected, that, by the will, the whole estate, real and personal, of the testator, was devised to executors and trustees, who were directed to place it out on public or private security, in such manner as should, in their judgment, best promote the interest of the legatees. The testator then directs, among other bequests, that his

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