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Penhallow v. Doane's Administrators. 3 D. diffidence I have ventured to give an opinion on a question so novel and intricate, and respecting which, men, eminent for their talents, their literary attainments, and skill in jurisprudence, have been divided in sentiment. The opinion, however, which has been given, is the result of conviction; if wrong, it is the error of the head, and as such will carry its apology with it.

II. Whether, after the articles of confederation were ratified, the court of appeals had jurisdiction of the subject-matter?

However problematical the opinion which has been delivered on the preceding point may be, I apprehend that little doubt or difficulty can arise on the present question. By the ninth article of the Confederation, the United States, in congress assembled, are vested, among other things, with the sole and exclusive power of establishing rules for deciding, in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States, shall be divided or appropriated; of granting letters of marque and reprisal in times of peace; appointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and determining, finally, appeals in all cases of captures.

The court of appeals, in September, 1783, decided upon the point of jurisdiction either directly, or incidentally; for, after a full hearing, they decreed that the sentences passed by the superior and inferior courts of New Hampshire should be reversed and annulled, and the property be restored. This decree being made by a court, constitutionally established, of competent authority, and the highest jurisdiction, is conclusive and final. It cannot be opened and investigated; for neither this court nor any other can, in a collateral way, review the proceedings of a tribunal which had jurisdiction of the subjectmatter. The court of appeals was competent to the decision; they have adjudicated as well on the jurisdiction as the merits of the cause, and we must suppose that they have acted properly. This

also is an answer as to irregularities, if any there were, [ *86 ) which may have taken place in the proceedings * before

the court of appeals, or in the mode of removing the cause before them. This court cannot take notice of irregularities in the proceedings, or error in the decision of the court of appeals. The question is at rest; it ought not to be again disturbed.

IIL Whether the district court of New Hampshire had jurisdiction; or, in other words, whether the libel exhibited before that court, was the proper remedy or mode of carrying into execution, either specifically or by way of damages, the decree of the court of appeals ?

Penhallow v. Doane's Administrators. 3 D. On this point I entertain no doubts. Recurrence to facts will answer the question. The existence of the court of appeals terminated with the old government; this also was the case with the subordinate court of admiralty in the State of New Hampshire. The property was not restored to the libellants, nor were they compensated in damages; of course the decree in their favor remains unsatisfied. They had no remedy at common law; they had none in equity; the only forum competent to give redress is the district court of New Hampshire, because it has admiralty jurisdiction. There they applied, and, in my opinion, with great propriety.

Judges may die, and courts be at an end; but justice still lives, and, though she may sleep for a while, will eventually awake and must be satisfied.

Having discussed the preliminary questions relative to jurisdiction, we shall now consider the proceedings in the circuit court of New Hampshire. And here the first question is, whether by the death of Elisha Doane, before the judgment rendered in the court of appeals, that judgment is not avoided? The death of Doane does not appear on the record of the proceedings before the court of appeals; it is in evidence from the certificate of the judge of probates, which is annexed to the record transmitted from the circuit court of New Hampshire. Many answers have been given to this question; some of which are cogent as well as plausible. On this subject, it will be sufficient to observe, that admitting the death of Doane, and that it can be taken notice of in this court, it is unavailing, because the proceedings in a court of admiralty are in rem. The sentence of a court of admiralty or of appeal, in questions of prize, binds all the world as to every thing contained in it, because all the world are parties to it. The sentence, so far as it goes, is conclusive to all persons.

The most formidable objections have been levelled against the damages.

1. It is said, that the damages ought not to have been given, because they were not prayed. The answer to this objection is satisfactory; the prayer is for general relief, and [ * 87 ] therefore sufficient.

2. If any damages ought to be given, yet none ought to have been awarded against George Wentworth, because he was an agent, and paid the money over under the decree of the court of New Hampshire.

If any agent pay over, after notice, he pays wrongfully, and shall not be excused. In this case George Wentworth was a party to the suit; he appeared as one of the libellants, and must be liable to all

Penhallow v. Doane's Administrators. 3 D.

the legal consequences resulting from such a situation. As a party, he was before the court and privy to the appeal, which was made in due season. The appeal did, from the moment it was made, suspend the execution of the decree, and that whether it was received or not;7 especially in cases like the present, where George Wentworth was a party to the suit before the court, and had notice of its having been tendered or made. In such a predicament, he ought not to have paid over; but should have awaited the ultimate decision of the court of appeals. If he paid, it was at his peril; he took the risk upon himself, and in case of undue payment became liable.

It has been said, that an inhibition should have been issued, and that without it the appeal did not suspend the execution of the decree. The writ of inhibition is a proper and necessary writ, not because it suspends the effect of the decree, for that is already done by the appeal; but because it enables the court of appellate jurisdiction, in case of disobedience, to punish the inferior court as being in contempt. The appeal has not this effect, because it is the act of the party, and not of the superior court.

A monition, it is said, ought to have been addressed to the appellees to enforce their appearance before the court of appellate jurisdiction. The answer is, that George Wentworth, as well as the others, did appear both before the court of commissioners and the court of appeals. If a defect, and inquirable into by this court, it is cured by appearance.

In short, George Wentworth was a party to the suit, present in court, and had notice of the appeal. If, in such a situation, he undertook to distribute the proceeds, it was at his own risk: and in case of reversal, he made himself liable.

I have doubts how far the court below could inquire into the ques. tion of agency and payment over, especially as the payment is said to have been made previously to the argument before the court of appeals, or even the court of commissioners. The decree is for resto

ration. If the court of appeals had issued process to carry [ *88 ] their definitive sentence into effect, or * had directed the

maritime courts of New Hampshire to have done so, would it, in the instance of George Wentworth, have been a legal justification to have said, that he had delivered the property, or paid its proceeds to the captors ? Besides, whatever could have been brought forward, by way of defence, in the court of appeals, ought there to have been urged and relied upon; and if the party has omitted to Penhallow v. Doane's Administrators. 3 D. do so, he has slipped his opportunity, and is precluded from taking advantage thereof in future.

1 2 Dom. 686.

I know that a distinction is made between foreign and domestic judgments; that the latter are conclusive, whereas the former are liable to investigation. Be it so. But is the principle upon which this distinction is founded applicable to decrees on questions of prize in the highest court of admiralty, which, in such cases, is guided by the law of nations, and not municipal regulations? If it is, it must be under very special circumstances.

3. It is objected, that the damages awarded are joint; whereas they ought to have been several. This objection is a sound one. But as the facts are spread on the record, it is in the power of the court to sever the damages, and so to apportion them as to effectuate substantial justice. The damages should have pursued and been admeasured by the original decree, which directed that one moiety of the proceeds should be paid to the owners, and the other to the captors. George Wentworth received a moiety only; he is liable for that, and no more.

4. Another objection is, that interest has been calculated from a wrong period, to wit, from the 2d October, 1778; and therefore the decree of the circuit court is erroneous.

The court of appeals pronounced their definitive sentence in September, 1783; by which the judgments of the inferior and superior courts of New Hampshire were reversed, and restoration decreed; they also directed that the parties should pay their own costs. I am of opinion that interest should have been computed from the day on which the definitive sentence of the court of appeals was pronounced. Of this there can be no doubt with respect to John Penhallow and the owners. Some doubts, however, have been entertained on this point with regard to George Wentworth. But for the reasons which have been assigned, he must be considered in the same situation as the others.

Arguments, deducible from the hardship of the case, have been advanced and insisted upon. It is hard that George Wentworth, who was an agent, should be made personally responsible. It is cruel that George Wentworth should be cut down by the collision of conflicting jurisdictions. But motives of commiseration, from whatever source they flow, must not * mingle [ *89 1 in the administration of justice. Judges, in the exercise of their functions, have frequent occasions to exclaim, “durun, valde durum, sed sic lex est.

Penhallow v. Doane's Administrators. 3 D.

£5,895 14 10

To conclude, the sum of . . . . . appears, on the record, to be the aggregate value of the Susanna, her cargo, &c.

On this sum interest should be calculated from 17th September, 1783, till 24th October, 1794, which will amount to . . . . .

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Equal to 32,721 dollars and 36 cents. The one moiety whereof being 16,360 dollars and 68 cents, I am of opinion, should be paid by John Penhallow and the owners, and the other moiety by George Wentworth. The costs in the courts below should be divided in the same manner.

I am also of opinion, that the parties should bear their respective costs, which have arisen on the prosecution of the appeal in this court.

IREDELL, J. This case, which is of so much novelty and importance, has been argued at the bar with very great ability on both sides. I have listened with the most respectful attention to every thing that has been said upon it, and the opinion, which I am now to deliver, is the result of the best consideration which I have been able to bestow on the subject.

The order in which it has appeared to me most convenient to arrange the different heads of inquiry, is as follows:

1. Whether either of the decrees of June, 1779, or September, 1783, was originally valid ?

2. If either of them was so, whether it was a decree which the district court of New Hampshire, or the circuit court of New Hampshire, acting specially in this cause for the legal reason alledged, had authority to enforce, either by decreeing a specific execution, or awarding damages for a non-performance of it.

3. Whether, if the district or circuit court had such an authority, it has been executed properly in this instance, under all the circum. stances of the case ?

4. Whether, in case the libellants were entitled to a decree in their favor, but it shall appear that the decree has been erroneous in respect to the relief given, either in the whole or in part, this court can rectify the decree, or order it to be rectified by the court below, or must affirm or reverse in the whole ?

Under the first head it will be proper previously to consider if either of the decrees was final and conclusive, because if that

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