The Federal mirror — Concord, N.H., 1796-02-02 00:00:00, page 1

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. [VOLUME IV.]
;IHUILWa > ■ wi l» irarrtuawm*« >«»Biir.«mww «w ■«<>«»»» staua
; THE PRIVATEER M'CLART.
f f 1 '"^*g
•to*,
REPORT
OF THE OPINIONS OF THEJUDGES
I, IN T & HE IMPORTANT C4USE of
; Penballow ct ^Lagainft Doane's
ADMINISTRATORS,
Delivered in the SUPREME COURT of the
UNITED STATES,
-1 ' AT FEBRUARY TERM, I79fr
• ° n3o Appeal from the Circuit Court for
$ / the DiftriL of Newhampihire.
Taken by pirmffonfrom tb% roto of the fudges.
lln the Supreme Court of the United
'! > States, Frb. Term, 1795.
;.John Penhallow,and others, Bgrtiuft the
Adminift^tors of Elisha Doane.
lOrt TurO/ay, tbs zyb a , 0, Fibruavy, 1795,
• ? The fudges thus delevered their Opinion.
[concluded.]
JUDGE CUSHING.
t^0(0
The fads of this case being already fully
C feted by the court, I shall go on to inquire,
whether the decre of the circuit court ought
to be reversed for any of the errors assigned
The firft is, thit the court of appeals,
,which made the decree of restoration, had
not jarifdiaion of the cause.
in anfeer to this, I concur with the rest
! ref the court, that the court of appeals, being
11 a court under the confederation of 1781, of
a the states, an^ being a court for " * tier -
- mining finally, appeal,, all cases of capture,"
^ tnd so being the highest court, rhe dernier
;refort in all such cases, their decision upon
f the jerifdiaion and upon the merits cf. the
I' cause, having heard the parties by theirs
{, , council, must be final and conclusive, to
, thfo»agd all other courts :— To this as a
f court of admiralty,' betaufe it is acaurt.of
, the fame kind, as far as relates to prize, and
~Without any cofftroling or revisionary powers
< JI, over it ;—to this as a court of common law,
because it h entirely a prize. matter, and not
of common law cognizance. ' The cases,
therefore, cited to (hew, that the common
'/' . law is of general jurifdiaion, and that the
court of King's bench prohibits, controls
and keeps within their line, admiralty cquct,
0 fpiritjal courts and other courts of a fercial,
,„ limited jurifdidion, do not, I conceive, touch
this case.
It is conceded by all, that the decifi,n otil
court competent is final and binding. Now
lif the court of appeals was, under the con
federation of all the dates, a court Constitut
ed "for determining finally appeals in alt <afa of
capture," it was a court competent ; and they
'I have decided. Again the admiralty of Eng ;
land give credence and force to the decisions
I§{ of foreign courts of admiral,y ; why not e
qual reason here?
It is true, the courts of common law there.
JI, will not allow a greater latitude to thejurif
didion of foreign courts of admiralty, thad
to their own ; as it seems natural and reaf;
onable, they Should not; for info nee, hold
lss fog pl ea °f a contrast made entirely a r land,
p which seems to have been the fubftintial
ground of a prohibition, in the case cited,
4 refpeaing the decree in Spaing
<if 'he decree of the court of appeals must
be considered as binding, as it must or there
may never be an end to this controversy ;
.j<? that will carry an answer to several other er
'}h rots assigned, viz. the third, fifth and fev
;'enth, refiling the cause not, being regu
larly before Congress or the court, and r<f
peeing the circuit court not entering into
T the merits—and to some other particular ex
ceptions ; as that, appealing to the foperior
court of Newhampfhhe was a waver of the
right of appeal to Congress: If that appeal
ft" , was confident with the refoN; of Congress,
{ which only provided an appeal to Cengrefs
fop in the iaft resort—it w^s not a waver. A
^^€ -Tl° it is said, 'here ought to have been a
% jnry at the court of appeals ; that, clearly,
• ;g was not the intent of the refohe cf C^i
grels, nor of the confederation, nor corrtfc;
pendent to the precdedipgs in.conrts ct :.d
Noiralff, even where trials byjur, are nftd
f^ accustomed in o'her matters ; nor w^
[itiho%M a proper or r,ece&ry prorifion in
w the prafenr conftittition. which fr been a
,/%) fated by the pe°p^ of the U,vrt<),fare,,
f^'^ As to the original qutfiion of the pavers
h XB : of Congref, -reforming capture,raffl has
tel W imd.&qaenqy Aid co h^ fida. 1
;w EWHAMPSHIRE—-PRINT? D AXDPUBCISHEE. RUSSELL AND^^PAV^^AT CONCORD^ , — , .
CONCO R D, TUESDAY, February 2, 1796.
▼TwitrTw^bii Qv.tafA 'Ufarab-MAeYv u„.+&.'ful4 t»a#±^tst <3<±o
I have no doubt of the fovereipty of the,|
states, faring the powers delegated to Con- ]
grefs, being such as were; " proper ^ ; # nee,
jat," to carry on, unitedly, toe com non de
lence in the open warjhat was w^geC ag,inft
this country, and in In,port of their liberties
to theend of the conitfl.
But, as has been hid, I conceive we are
concluded upon that point, by a final decif
ien-heretofore made. ,
The 2d exception in error is, that the fen,
tenceofthe ccCTt of appeals was void by the
death of Mr, Dotn^
That sass decs not appear upon the record
of the court of appeals, and I thick we can
not revet fe the decree in this incidental way,
if it could be done upon a writ of error, if
it was pleadable in abatement, it ought to
have been pleaded or suggested ^toe by the
.opposite party.,
On the contrary it is implied^, the record,
that Doane was alive ; ctherwife be could
no: have been heard by his council, as the
record sets forth ; for a dead man could not
have council or attorney. On the other hand,
the letters of admioiftration imply *?t he
was dead atthe time ; but (hole letters w^re
not before the court, and therefore could not
be a ground for their abating the fuir, if it
was abatable at all for such cause. Here
seems to be rec rd against record, as far as
implications go, and I take it to be an error'
in fa&, for which, by the judicial a&, there
is to be no reversal. Upon this head, a case
in Sir Thomas Ray, is cited by the council
for the plaintiff in error, of Trover by five
plaintiffs—one dies—the rest proceed to ver
dift and judgment—and adjudged error, be- 1
cause every man is to tecover according to
the right he has at the time of bringing the
adion ; and here each one was not, at th*
time of bringing theadion, entitled to so
much as at the death of one of the plain
tiffs.
But a case in chanchrry cases, p. ;% is
more in point—where money was,ade pay- q 1
able by the decree re a man that 'was dead,jj
and yet adjudged, among other things, nd
error. But another matter, which seems
well to rule this case, is that, being a fait in
rem death does not abate it.
So fay some books, and I do net remem
ber to have heard any to the contrary. It
does not affect the juftire of the cause ; it
makes no odds to the plaintiffs in error,
whether the monty is to be paid to Colonel
Doane being alive, or to bislegal representa
tives, if dead
The 41b exception, thit damages ar, not'
prayed for, yet decreed, is answered by a
I prayer for general relief.
~The Bih exception is, that the diftria and
circuit couft petKHed uot admiralty jurisdic
tion, and that the circuit court had no right
to Carry the decree into execution;
frlfcourts of admiralty can carry into exe-
Cution decrees of foreign admiralties, as
seems to be fettled law and usage ; and if
the diftrid and circuit courts, have admiral
ty powers by the lawand constitution, as was
acjudge. land determined by this court last
February, I think there can be no doubt up
on this point.
Another question of consequence is, whe
ther Mr. George Wentworth, being agent
for the captors and having paid over, can be
answerable jointly with the other libellants
for the whole, or, in any way, for any part.
If it was simply the case of an agent regular
ly Paying over, I fhoold suppose he could
not justly be called upon to refund. But it
seems he was an original lihellant, a party
through the whole course of the suit ; andi
an appeal being claimed in time, at the court |
and term, at which the libellants obtained ;
the decree (of which therefore he had legal!
notice) the appeal if a lawful one, in my 0-,
pinion, suspended the fentehce and must 1
make him answerable for Whatever monies |
he Ihould receive under that decree, in cafe|
df reversal : every man being bound to takel
notice cf the law, arhis peril.j|
It is luggeßud. that anirJiibirion whs nec-1
efftry to take off the force cf the femence.l
An inhibition (according to the form of duej
produced, which issued in England Uft Julf>]
near four months, after the triiland appeal 1
at Newprovidence inhibits the judgfrund,
the party from doing anything in prejudice [
cf the apperl or of ' tfe jurdditton of thel
court appealed to, and cites the p # ;rty to a, [
pear and anfeer the partv cppdbnL at ,j
certain time end place. The ciuvion totle
party to appear and anf&ier atthe proper.
rfin9 and place, I nkc ro.tohe mart fcb
hrffcl part f>f the proems ; thfjhiijbimr* ,
part so be rather matter of &>rm,orfa parrf
LfICTZCTC"I#< T Y rt°^ryr r#^ «^4 ^t#T.qp<slJn^-4=
I foance cf the fufoending nature cf the a, 1
I pert, and a, 4 further guard and caution a-|
gainft mifapplyingth^ property. For i[ a P|
pears 10 roe absurd 10 suppose that an inbibi-1
tion taken otr feve%,r eight months after ;
the appeal (nine rukhs' being allowed tor,
the purpose) should be the only thing that!
suspended the femence, leaving the judge
below and the party, all that time, to carry:
the sentence into compleat txecu ion.
The j idici rt a& in providing an appeal in
maritime causes to 'the circuit court, co;}
tains no hint of an inhibition as necessary to
suspend the sentence. Domat is express
that an appeal has that effect, and I believe|
other civil law writers.
The rejection of the appeal, if unwarrant
ed, could not take away the right of the citi
zen°
There does not appear any thing a&ually
compulsory upon Mr. George Wentworth to ।
pay the money, except what may be fuppof.j
ed to be contained in the decree appealed:
from, the force of which was suspended. —!
All this matter might have been offered at1
the court of appeals, where the parties werel
fully heard, and, if offered, was, no doubt,
involved in their decifidn.
It is said, if l understand the matter right,
that there ought to have been a monition ,
from the circuit court to Mr. Wentworth to ;
bring in wha, he had in his hands. |
I fee no neceflity for a monition exa^ly in•
that form. There was a monition to come;
in and answer the libellants upon the jufticel
of the cause, as set forth ; he came in and ;
had opportunity to defend himfelf; and thej
, question was, whether he was answerable up
on the circumstances of the case, which was
determined by the court.i
By the cases in Durnford and Bast, as well
as from other books, it is clear that the ad
miral has not only jurifdiaion in fers, but al
so power over the per funs of the captors and
all these who have come to the poffeuion cf
1 the proceeds of the prize, to do competejuf
j tictas the case requires, to captors and clai
nfems. • '
But I cannot conceive why the decree of
the court of appeals is not conclusive upon
Mr. George Wentworth as much as upon
the other libellants.
Agria it is ptjtaed, that the decree bring
;for reftor^rion, damages could not be award
ed. The decree “was not complied w;th —
the thing was gone. How, then, could juf
tier be cone without giving damages ?
Then the queftico is, how are we to un
derftdod the decree.; as joint upon all the
libdWrfs for the Whole, Mr. George Went
werthimlt!<k,l, or as decreeing the owners
to restore one halt and Mr. George Went
dorrh agent for the captors, the other half ?
It the latter, which perhaps may be a rea
sonable and just conftrudion, conformable
to the spirit cf the original libel, then the
decree of the circuit court is in that refpea
erroneous, Also as to damages, I suppose,
interest ought not to have been allowed far
ther bach than thedecree. The only quest
ion that remains, is whether this court can
rectify those errors, confident with the ju
dicial, ad. And I think it may, as theieis
fufficient matter, apparent upon the record,
fodo ir
I agree that each party bear their own
cefia of this ccprt.
O ITie to hobfeQtbOT J% Cushing,
•with tbs Giberfedges of ek Supruns Court of
the State of Mfrbu/itts, in thyrar 1786,^^
unanimous that tbs Court of Appeals appointed 1,
1 Cargre/s bad no authority in this i&ate, in dirid
\ c^adiSion to bis crtf ent decfa ; andfor übieb
I be giwts no recjcn.
_.. r ---ct——ramrcre:—&-&^ # ?*4#=T¥rr3 r =^ CTre^rcj=^t^^^^-;^,
Lat^ft Foreign Intelligence.
1 - —i— -t t ~tt¥*—-
OFFICIAL
I ^munn of /icl^s near the Rhine.
; — ===^
I LONDON, NOV. 12.
ITN ^onfeq^e?ce of the difpitches,
1^ the fykied Tower gunr were
'fired last night, to celebrate the ad
v^otrg? gai^M bit $$ Auiltians, in
I taring forced the breech to abandon
Itheir €0 f qmlU on the other fide of
the Rhine ; and this rooming govern
mem p&Athed thel^*^;'^^
GiZEhi fXTRAGRDtNmR'G Thutfcty
NOV. 12,
l^TC^i'
nrr,. yi
I Downing-!! net, Nov. ti.
Head barters, ir^munfhr. Oil. tS.
I "MY LORD,
!" I have the ^onor to inform your
;Lordship, that fi rce the 13 h inft4%
;the advanced guilds of rhe AtffhiiO
army, under Generals Baroi, Kray,
iand Hadduk. h£,c b^en in conuanc
: pufui: u fc the eremy on all the nnd^
I fading actols the Lrt^n, between
i Wriiburgh and N^nm. Gen. Wer
-Ineck, with the ufc^e, marched to
-Iwards Limbou% as a central pein',
from which he cou'd fapporrthe ad
vanced guarcs to hn tight and left;
accordi g to circuc^rcCT whiff the
;main army advanced to the camp ot
j Weitednfter, between Ufingen and
IWedbourg, ready to ciols the Lhan
I at the latter place, and attack the en*
lemft left, if they ffiadd attempt to
maintain a pofrion 00 that river.
" The Marshal has t^ken ever,
;ftep that he jjdgtd heft calculated co
laddrefi the arm% bo; their repeat has
I been so precipitate, and the country
:through which thty marched, so ex-
Itremely interfered wih woods and
:deep varies that be has only been
jfo# to bring on fame eff/u with the
Ibeft Hoops of the rearguards of their
I different columns. In these, the Auf-
Itriaos have taken several cannon, a
I great many ammunition waggons,
; and between one and two thousand .
prifonerr, besides having killed and
?wounded confidence numbers.
“ It is expe&ed that the enemy
I will raise the siege of Ehreabreiftein
: to day, and they seem determined to
; pass the Rhine, with the principal
Ipart of their army, at Neuwied, (where
Ithey have bridges,) as expeditioifly
lasI as poffibh. Their left column is di~
; reeling in march towards Cologne.
] " The Auffriao advanced guards,
! furporred by the itferve, are still in
I the poduiH
“ The enemy have destroyed a
! great quantity of powder end other
Iliora, which they had not time to
fend away.
I have the honor to be.&?.
C. CRAUFURD.
Head barters, Weilmutfer, Obi. 19.
" MY LORD,
“ I have the honor to inform your
jLnrehhip that the lege of Ehreo,
I breirftein it raised, and the enemy are
Icroffing the Rhine as expeditious, as
poffibe at Neuwied.
I have the honor to be, &c.
C. CRAUFURD.
Right Hon. Lord Gtawilto,&c &c.
.^ Head Barters of M^rfbal Clerfttf,
Array, Od. 26.
" MY LORDS,
" I havethe honor to inform ,cur
Lerdfhip that Gm. Wurmfer has ob
tained a fignai advantage over the
French io the neighborhood of Man
heim, and of which the following if
a detail:
" so the night from the 17th to
;& that part of the Auf
xrian army which was Rationed be
fore Manheim, nffembled in five col
umns, commanded bv Geo. Wurm
fet in person, to attack the different
posts that the enemy occupied in the
front of that place. The difpefoion
was very matierl,, and the spirited
manner in which it was executed, an- Q
fwered @ lO the wiffi and expert ;
[number CT']
= .^^tta a r_Wfo tdiMtcft>Q..lltedßaa^tte^^T