Bingham v. Cabbot. 3 D.

acknowledgment that Mr. Bingham was a public agent, and that the public, as his principal, was accountable for the money.

The certificate of the Marquis de Bouille, whether regarded as an original order, or as the evidence of a parol order previously given, ought to have been laid before the jury. The Marquis acted officially as governor and commander in chief; and we must presume that he exercised a lawful authority in a lawful manner.

Under these circumstances it only remains to consider what course should be pursued by the court, in order to give the defendant the benefit of a trial upon a full view of his legal proofs. I think, for that purpose, that a venire facias de novo ought to issue. For, although a court of common law has no jurisdiction of the question of prize, yet whether it is necessary, in the present case, to determine that question must depend upon the facts which are established at the trial. On a count for money had and received, &c., the court below has primâ facie jurisdiction; and if the jury shall think Mr. Bingham was merely the agent of the plaintiffs, the validity of the capture, as prize, can form no ingredient in deciding the issue. If, on the contrary, the jury shall think Mr. Bingham acted as a public agent, their verdict must be in his favor, as he was bound to keep the property for the real owners; and the captors can never show that they are the real owners until the vessel and cargo have been condemned as prize by a competent tribunal. The captors may then proceed against Mr. Bingham in a court of admiralty, whose decree of condemnation, operating against all the world, would entitle the captors to receive the money, and justify Mr. Bingham or congress in paying it.

WILSON, J. In several instances I concur in the sentiments that have been delivered by the judges who have preceded me; [ 42 ] but I think it is unnecessary to specify the particulars, * or to amplify the reasons, since I continue clearly in my opinion on the point, which was separately argued, that this cause is exclusively of admiralty jurisdiction. On that ground I choose entirely to rest the judgment that I give, but it leads inevitably, also, to another conclusion, that the court not having jurisdiction, a venire facias de novo, which, in effect directs the exercise of jurisdiction, ought not to issue. I am, therefore, for pronouncing simply a judgment of reversal.

PATERSON, J. I cannot agree to send a venire facias de novo to a court, which, in my opinion, has no jurisdiction to try or to decide the cause.

United States v. Lawrence. 3 D.

CUSHING, J. I shall give no opinion upon the question of affirming or reversing the judgment of the court below. My brethren think there is error in the proceedings, and they are right to rectify it. On the question, however, of awarding a venire facias de novo, I agree with Judge Iredell. But as the court are equally divided, the writ cannot issue.

Judgment reversed, but no writ of venire facias de novo was awarded.

4 D. 7, 12, 22; 1 C. 343; 2 C. 9; 8 P. 112; 11 P. 351; 12 P. 657; 2 H. 9; 6 H. 31.

THE UNITED STATES V. JUDGE LAWRENCE.

3 D. 42.

When a judge has acted in his judicial capacity in refusing to issue a warrant because he deemed the evidence insufficient, a mandamus cannot be granted to compel him to issue it.

This court has no power to compel a judge to decide according to the dictates of any judgment but his own.

A MOTION was made by the attorney-general for a rule to show cause why a mandamus should not issue to the district judge of New York, to compel him to issue a warrant to apprehend Captain Barre, commander of the frigate Le Perdrix, belonging to the French republic.

The case was this. Captain Barre had voluntarily left his ship and become a resident of New York, and the vice-consul of the French republic had made a demand, in writing, on the district judge for a warrant to arrest him as a deserter, by virtue of the ninth article of the consular convention between the United States and France. The district judge decided that no warrant could issue, until the applicant should prove by the register of the ship, or the Role d Equipage, that Captain Barre was in fact one of the crew of Le Perdrix. The vice-consul offered a copy of this document, and other evidence, but the district judge held it inadmissible under the particular terms of the convention.

The minister of the French republic having complained to the President of the United States of this refusal of the judge, the present motion was made to satisfy the minister by obtaining the opinion of the supreme court thereon. It was elaborately argued by the Attorney-General in favor, and by Ingersoll and W. Tilghman

Penhallow v. Doane's Administrators. 3 D.

against the motion, upon the construction of the fifth and ninth articles of the convention, and the power of this court to issue a mandamus.

[ *53 ] BY THE COURT. We are clearly and unanimously of opinion, that a mandamus ought not to issue. It is evident, that the district judge was acting in a judicial capacity, when he determined that the evidence was not sufficient to authorize his issuing a warrant for apprehending Captain Barre; and, whatever might be the difference of sentiment entertained by this court,

we have no power to compel a judge to decide according [54] to the dictates of any judgment but his own. It is unnecessary, however, to declare, or to form, at this time, any conclusive opinion on the question which has been so much agitated, respecting the evidence required by the ninth article of the consular convention.

The rule discharged.

5 P. 190; 14 P. 599.

PENHALLOW et al. v. DOANE'S ADMINISTRAtors.

3 D. 54.

During the war of the revolution congress had power to appoint commissioners of appeal and to constitute an appellate court for the final decision of prize causes.

In a prize cause, an appeal having been taken from the decision of the highest court of the State of New Hampshire, to congress, and having been referred to the commissioners of appeal, and subsequently heard and adjudicated by the court of appeals, it was held that its decree was coram judice, and binding.

This decree not having been executed, the district court of the United States for New Hampshire had jurisdiction of a libel to enforce it.

The death of one of the parties to the decree did not affect the right to have the decree executed.

A prayer for general relief, allowed a recovery of damages for not executing the original decree.

THIS was a writ of error, directed to the circuit court for the district of New Hampshire. The case was argued from the 6th to the 17th of February; the attorney-general of the United States (Bradford) and Ingersoll, being counsel for the plaintiffs in errror; and Dexter, Tilghman and Lewis, being counsel for the defendants in

error.

The case was reduced to a historical narrative by Judge PATER

Penhallow v. Doane's Administrators. 3 D.

SON, in delivering his opinion, an abridgment of which is deemed sufficient to exhibit the facts on which the decision was made.

In March, 1776, congress resolved that the inhabitants of these colonies be permitted to fit out armed vessels to cruise on the enemies of the United Colonies, and in April following settled the form of a commission.

On the 3d of July, 1776, the State of New Hampshire passed an act for the trial of prize cases, by courts of the State, but in pursuance of the advice theretofore given by congress, an appeal to congress was allowed from the decree of the maritime court, and another appeal to the superior court, but no appeal from the latter to congress. In January, 1777, congress resolved that a standing committee, to consist of five members, be appointed to hear and determine upon appeals in the admiralty. In October, 1777, the armed brigantine McClary, under a commission from congress, commanded and owned by citizens of New Hampshire, captured the Susanna, and she was libelled as prize by the owners and George Wentworth, agent of the captors, and having been claimed by Elisha Doane and others, citizens of Massachusetts, trials were had in the maritime court of New Hampshire, and on appeal in the superior court of New Hampshire, and the Susanna and her cargo condemned as lawful prize. The claimants in due season claimed an appeal to congress, offered security to prosecute it, and lodged their appeal with the secretary of congress within the time prescribed by the act of New Hampshire. The commissioners of appeals decided that they had jurisdiction, but before the cause was heard, congress established "the court of appeals in cases of capture," under the articles of confederation, bearing date July 9th, 1778, and finally ratified by all the States on the 1st of March, 1781, and to this court this appeal and all similar business pending before congress was transferred, and this appeal was heard by this court of appeals, the sentence of the court below reversed, and the property ordered to be restored. Here the cause rested until after the adoption of the constitution of the United States, and the organization of its judiciary, when the representatives of one of the claimants filed a libel in the district court of the United States for New Hampshire, against the owners of the McClary, and Wentworth, the agent of the captors. The libel set forth that the property, and the moneys arising from its sales, came to the possession of Joshua and George Wentworth, and gave a history of the previous proceedings, and prayed process to compel the respondents to show cause why the decree of the court of appeals should not be carried into effect, and that right and justice may be done, and that they may have damages for the capture.

Penhallow v. Doane's Administrators. 3 D.

The respondents, protesting they never were the owners of the McClary, and that they have none of the effects of the Susanna, or her cargo, in their possession, say, that the Susanna was in the possession of the marshal, was sold, and the proceeds distributed pursuant to the decree of the superior court of New Hampshire, and deny the jurisdiction of any court to disturb that decree, and also deny the jurisdiction of the district court to carry into execution the decree of the court of appeals.

*

[ * 79 ] PATERSON, J. This cause has been much obscured by the irregularity of the pleadings, which present a medley of procedure, partly according to the common, and partly according to the civil law. We must endeavor to extract a state of the case from the record, documents, and acts which have been exhibited.

[Here the judge delivered the historical narrative of the cause, with an abridgment of which this report is introduced, and then proceeded as follows.]

I have been particular in stating the case, and giving an historical narrative of the transaction in order that the grounds of decision may be fully understood. The pleadings consist of a heap of materials thrown together in an irregular manner, and if examined by the strict rules of common law, cannot stand the test of legal criticism. We are, however, to view the proceedings as before a court of admiralty, which is not governed by the rigid principles of common law. Order and systematic arrangement are no small beauties in juridical proceedings; and whatever may be said to the contrary, it will, on fair investigation, appear that good pleading is founded on sound logic and good sense.

In the discussion of the cause, several questions have been agitated, some of which, involving constitutional points, are of great importance.

The jurisdiction of the commissioners of appeals has been questioned.

[* 80 ]

*The jurisdiction of the court of appeals has been questioned.

These jurisdictions turning on the competency of congress, it has been questioned, whether that body had authority to institute such tribunals.

And, lastly, the jurisdiction of the district court of New Hampshire has been questioned. In every step we take, the point of jurisdiction meets us.

I. The question first in order is, whether the commissioners of