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DECISIONS

OF THE

SUPREME COURT OF THE UNITED STATES.

JANUARY TERM, 1827.

JUDGES DURING THE TIME OF THESE REPORTS.

Hox. JOHN MARSHALL, CHIEF JUSTICE.
HON. BUSHROD WASHINGTON,
HON. WILLIAM JOHNSON,
Hon. GABRIEL DUVALL,
Hon. JOSEPH STORY,

AssocIATE JUSTICES
Hon. SMITH THOMPSON, AND
Hon. ROBERT TRIMBLE,
WILLIAM WIRT, Esq., ATTORNEY-GENERAL.

Memorandum. - Mr. Justice TRIMBLE was appointed May 9, 1826.

THE PALMYRA. Escurra, Master.

12 W. 1. This court possesses the power to reinstate any cause dismissed by mistake. A stipulation for property subject to admiralty process, is a mere substitute for the thing itself, and the rights of the stipulators are subject to the same powers as might be exercised by the court over the property, if still in its custody. They cannot prevent the reinstatement of a cause, though the court may not wholly disre

gard their interests. Proceedings for condemnation upon captures made by public armed ships are in the name and authority of the United States, who prosecute as well for themselves as for the captors, and where damages are awarded against the latter, each have a right of appeal from that decree. I a libel is not a sufficient basis for a decree, and the proofs show cause for condemnation, the case is remanded to the circuit court with directions to allow an amendment. VOL. VII.

. 1

The Palmyra. 12 W. In general, a libel in rem for a forfeiture, which alleges the offence in the words of the

statute, is sufficient. In a libel in rem under the acts of March 3, 1819, and May 15, 1820, (3 Stats. at Large, 510,

600,) for piratical aggressions, it is not necessary to allege or prove & conviction of the

person for the criminal offence. Though probable cause is not a bar to damages for a mere municipal seizure, unless made

so by statute, yet a seizure for piratical aggression is an exercise of a quasi belligerent right, and probable cause is a defence, as in prize causes.

The case is stated in the opinion of the court.

The Attorney-General, and Hayne, for the appellants.

Tazewell, for the respondents.

STORY, J., delivered the opinion of the court.

This is the case of a proceeding in rem, by a libel of | *8 ) information founded on the act of congress of the 3d * of

March, 1819, c. 77, as continued in force by the act of congress of the 15th of May, 1820, c. 113. The 2d section of the former act authorizes the President “to instruct the commanders of public armed vessels of the United States, to seize, subdue, and send into any port of the United States, any armed vessel or boat, or any vessel or boat, the crew whereof shall be armed, and which shall have attempted or committed any piratical aggression, search, restraint, depredation, or seizure, upon any vessel of the United States, or of the citizens thereof, or upon any other vessel.” The 4th section declares : “ That whenever any vessel or boat from which any piratical aggression, search, restraint, depredation, or seizure, shall have been first attempted or made, shall be captured and brought into any port of the United States, the same shall and may be adjudged and condemned to their use, and that of the captors, after due process and trial, in any court having admiralty jurisdiction, and which shall be holden for the district into which such captured vessel shall be brought, and the same court shall thereupon order a sale and distribution thereof accordingly, and at their discretion."

The brig Palmyra is an armed vessel, asserting herself to be a privateer, and acting under a commission of the King of Spain, issued by his authorized officer at the Island of Porto Rico. She was captured on the high seas on the 15th of August, A. D. 1822, by the United States vessel of war Grampus, commanded by Lieutenant Gregory, after a short resistance, and receiving a fire from The Grampus, by which one man was killed, and six men were wounded. She was sent into Charleston, South Carolina, for adjudication. A libel was duly filed, and a claim interposed; and upon the proceedings in the district court of that district, a decree was pronounced by the court, that the

The Palmyra. 12 W.

brig be acquitted, without any damages for the capture, injury, or de tention. From this decree an appeal was made, by both parties, to the circuit court; and upon the hearing in that court, where, for the first time, the officers of the privateer were examined as witnesses, the circuit court pronounced a decree, * affirming so much [ *9 ] of the decree of the district court, as acquitted the brig, and reversing so much of it as denied damages, and proceeded finally to award damages to the claimants, to the amount of $10,288.58. From this decree there was an appeal, interposed on behalf of the United States and the captors, to the supreme court. The cause came on to be heard upon this appeal, at February term, 1825, and upon inspection of the record, it did not then appear that there had been any final decree, ascertaining the amount of damages. The court were of opinion that if there had been no such decree, the case was not properly before the court upon the appeal, there not being any final decree, within the meaning of the act of congress. The court considered that the damages were but an incident to the principal decree; that the cause was but a single one; and that the cause could not, at the same time, be in the circuit court for the purpose of assessing damages, and in this court upon appeal, for the purpose of an acquittal or condemnation of the vessel. The questions indeed were different; but the cause was the same. Upon this ground the appeal was dismissed. But at the last term of the court, it appearing that in point of fact there had been a final award of damages, and that the error was a mere misprision of the clerk of the circuit court in transmitting an imperfect record, the court, upon motion of the appellants, at the last terın, ordered the cause to be reinstated.

It is now contended that this court had no authority to reinstate the cause after such a dismissal. 1. Because it may operate to the prejudice of the stipulators or sureties, to whom the privateer was delivered, upon stipulation, in the court below; and, 2. Because the cause was capable of being heard in this court upon the appeal in respect to the decree of acquittal, that being the only decree in which the United States had any interest as a party; and that, as to the damages, the captors were the only persons responsible for damages, and they alone had a right of appeal respecting the same; so that by operation of law, the cause had * become divided [ * 10 ] into two separate and distinct causes, in which each party was an actor.

This court cannot concur in either objection. Whenever a stipulation is taken in an admiralty suit, for the property subjected to legal process and condemnation, the stipulation is deemed a mere : The Palmyra. 12 W. substitute for the thing itself, and the stipulators liable to the exercise of all those authorities on the part of the court, which it could properly exercise, if the thing itself were still in its custody. This is the known course of the admiralty. It is quite a different quegtion, whether the court will, in particular cases, exercise its authority, where sureties on the stipulation may be affected injuriously. That is a subject addressed to its sound discretion. In the present case there was no ground for surprise or injury, to the stipulators, or indeed to any party in interest. If there had been no final award of damages, the cause would not have been properly before this court, and the appeal itself, being a nullity, would have left the cause still in the circuit court. But as such an award was made, the appeal was rightfully made; and the dismissal, being solely for a defect of jurisdiction apparent on the record, and founded on a mistake, constituted no bar to a new appeal, even if a general dismissal might. The appeal then might, at any time within five years, have been lawfully made, and have bound the parties to the stipulation, to all its consequences. The difference between a new appeal, and a reinstatement of the old appeal, after a dismissal from a misprision of the clerk, is not admitted by this court justly to involve any difference of right as to the stipulators. Every court must be presumed to exercise those powers belonging to it, which are necessary for the promotion of public justice; and we do not doubt that this court possesses the power to reinstate any cause dismissed by mistake.

The reinstatement of the cause was founded, in the opinion of this court, upon the plain principles of justice, and is according to the known practice of other judicial tribunals in like cases.

The other objection has not, in our opinion, a more solid [ *11 ] *foundation. The libel was filed by the district attorney,

as well in behalf of the United States, as of the captors, and prayed, as usual, a condemnation of the vessel, and distribution of the proceeds. This fact is noticed for the purpose of answering the observation made at the bar, as to the parties to the libel. It has been supposed that the United States, and the captors, are to be deemed severally libellants, having distinct rights, both of prosecution and appeal. But this proceeds upon a mistake. In every case of a proceeding for condemnation, upon captures made by the public ships of war of the United States, whether the same be cases of prize, strictly jure belli, or upon public acts in the nature of captures jure belli, the proceedings are in the name and authority of the United States, who prosecute for themselves as well as for the captors. The captors cannot, without the authority of the government, proceed to enforce condemnation. The suit is, in form and substance, The Palmyra. 12 W. a proceeding by and in the name of the United States, for the benefit of all concerned. And whether the question respect the point of condemnation, or of damages, the United States have a right of appeal coextensive with the whole matter in litigation, and may interpose their protection to guard their agents and officers against injury and damages. . These agents and officers are, indeed, in a certain sense, parties to the suit, as the seizing officer is in cases of mere municipal seizures; and when the claimant makes himself, by a demand of damages, an actor in the suit, no doubt exists that the court may proceed to decree damages against them, and thus entitle them to a separate right of appeal, if the government should feel that it had no further interest to pursue the suit. But still the right to damages must always be dependent upon the question of condemnation or acquittal, for it can never be successfully contended, that if a condemnation is finally adjudged, a decree for damages can be maintained. And, on the other hand, in a case of acquittal, the whole circumstances of the case must be taken into consideration, in order to ascertain that the case is one which justifies an award of damages. * In the present [ * 12 ] case, there was an appeal entered by the district attorney for the United States, and also for the captors, from the decree of the circuit court. If this decree was final, such an appeal brought up the whole cause as to all the parties; and would, in point of law, have produced the same effect, if in form the appeal had only been in the name of the United States. If the decree was not final, (as- upon the original record it appeared to this court not to be,) then it was void as to all parties. Either way, then, there never was any separation of the parties libellants, so as to give rise to the point of separate independent causes. We are, then, of opinion that the whole cause is now rightfully before us.

It is contended, on behalf of the appellees, that the present suit cannot be maintained, because the libel itself is fatally defective in its averments. It is said to be too loose, inartificial, and general in its structure, to give a just foundation for any judgment of condemnation. If this were admitted to be true, the only effect would be, supposing the merits on the evidence appeared to be in favor of the libellants, that the court would according to its known course of practice remand the cause to the circuit court, with directions to allow an amendment of the libel, and ulterior proceedings consequent thereon. But there is asserted to be another fatal defect in the averments of the libel which is incapable of being cured, because it cannot be established in point of fact; and that is, that the offenders are not alleged to have been convicted upon any prosecu

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