The Federal mirror — Concord, N.H., 1796-01-01 00:00:00, page 2

1. If 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 Newhampfhire. , .
If any agent pay over, after notice, hepays
wrongfully, and fha|l not be excused. In
this case George Wentworth was a party to
the frit, he appeared as one of the libellants,
and must be liable to all the legal conse
quences 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 whetherit was received or not ,
especially in cases like the present, where
George Wentworth was a party to the suit,
before the court, and had notice of its hav
ing been tendered or made. In such a pre
dicament, 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 himfelf,
and in case of undue payment, became lia
ble.
It has been said, that an inhibition should
have been ifyed, and that without it theap
peal did not suspend the execution of the de
cree. The writ of the inhibition is a proper
and necessary writ, not because it suspends
the effed of the decree, for that is already
done by the appeal ; but because it enables
the court of appellate jurifdidion, in case of
difobedienee, to punish the inferior court as
being in contempt. The appeal has not this
effeft, because it is the ad of the party, and
not of the Superior court.
A monition, it is said, ought to have been ,
eddreffed to the appellees to enforce their ap
pearance before the court of appellate jurif
didion. The answer is, that George Went
worth, as well as rhe others, did appear both
before the court of commissioners and the
court of appeals. If a defea, arid inquirable
tao by this court, it is cured by appearance.
In ftiort, 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 rilk : and iq case of reversal, he
made himfelf liable. : <,
I have doubts how far the court below
could inquire into the question of agency and
payment over, especially as the payment is
laid to have been made previously to the ar
gument before the court of appeals or even
the court of commissioners. The decree is
for restoration. If the court of appeals had
issued process to carry their definitive sen
tence into effect, or had direded the mari-,
time courts of Newhampffiire to have done
so, would it, in the instance of George Went
worth, have been a legal justification to have
said, that he had delivered the property, or
paid its proceeds to the captors ? Betides
whatever could have been brought forward,
byway of defence, in the court of appeals,
ought there to have been urged an, relied
upon ; and if the party has ommitted to do
so, he has dipt his opportunity, and is pre
!QOm.6S6.
question. The exiftenee of the court ofap
peak terminated with the old government ;
this allo was the case with the fubArdinate
court of admiralty in the state of Newhamp
thire. The property was not restored to the
libellants, nor were they, compensated in
damages ; of course the decree in their favor
remains unfarisfied. The, had no remedy
at common law ; they had none in equity ;
the only forum competent to give redress is
the diftrid court of Newhampthire, because
it has admiralty jutifdiaibn. There they ap
plied, and, in my opinion, with great pro
proiety. V
Judges may die, and courts be at an end;
butjuftice still lives, though the may sleep
for a while, will eventually awake, and must
be fatisfied.,
Having discussed the preliminary questions
relative to jurifdidion, we shall now confider
the proceedings in the circuit court of New
hampfhire. And here the firft question is,
whether by the death of Eiifha Doane, be
fore the judgment rendered in the court of
appeals, that judgment is not avoided ? The
death of Doane does not appear on the rec
ord of the proceedings before the court of
appeals ; it is in evidence from the certifi
cate of the judge of probates, which is an
nexed to the record transmitted from the cir
cuit court of Newhampfhire. Many answers
have been given to this question ; some of
which are cogent as well as plausible. On
this fubjed it will be fufficient-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 intern. The sentence
of a court of admiralty, or of appeal in ques
tions of prize, binds All the world, as to eve
ry thing contained in it, because all the world
are parties to it. The sentence, io far as it
goes,is couclufive to all perlons.
The most formidable objections have been
levelled against the damages.
I. It is said, that damages ought not to
have been given, because they were not pray
ed. The answer to this objection is fatisfac
tory —the prayer is for general relief, and
Therefore fufficient.
Making in the whole £.9,816 8 2
Equal to 32,721 dollars arid 36 cents.—
The one moiety whereof, being 16,360 dol
lars and 68 cents. lam 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 di
vided in the fame manner.
I am also of opinion, that the parties should
bear their refpedive costs, which have arisen
on the prosecution of the appeal in this
court.
[ft be coutiraQ
_=„— ==. —
FEDERAL BRIDGE.
STATE of NEWHAMPSHIRE.
In the,ear of our Lord one tboufand jevtn hun
dred and ninety five;
an ACT,
To incorporate certain perfoas, for the pur
pose or building a Bridge over the river
Merrimac, at or near a place called Tuc
ker's Ferry, in Concord, and for sup
porting the fame.
WHEREAS a Bridge over said river at the
place abovementioned, will be of public
ufflikp-^^ Timothy Walker,
tanfti^^ William Partridge, Jo
iffihaffaltman/and Jolhua Thompson,
and others, their associates, have petition
ed the General Court for liberty to build
the fame, and to be incorporated for that
purpofe—Therefore,
b E it ena&ed by the Senate and House of
[) Reprftentative!, in General Court con
vened, That the persons above named, together
with those their ofrciates who ate, or fall be
come, proprietors tn said Bridge, so long as they
continue proprietors thereof, Wlbea Corporation
and Bod, Politic, for the pnrpojes aforefaid, under
the name of THE PROPRIETORS OF FED
ERAL BRIDGE ; and by that name ma, jut,
ond befued; to final judgment and execution, and
do amiftfer all matters, ads and things which
Bodies Corprate may or ought to do or /uffir.—
And the said Corporation fall anima, have a
common ftal, and the fame ma, break, renew, and
alter, at fleajure.
And be it further enacted, That Timati,
Walker, Ejq.fall call a meeting offaid Propri
etors, by advertijement in fa Federal Mirror,
The court of appeals pronounced their de
finitive sentence in Sept. 1783 ; by which the
judgments of the inferior and superior courts
of Newhampfhire were revtrfed, and restora
tion decreed ; they also direded, that the
parties ihould pay their own costs. lam of
opinion, that interest should have been com
puted from the day, on which the definitive
sentence of the court of appeals was pro
nounced. Os this there can be no doubt
with refped to John Penhallow and the own
ers. Some doubts, however, have been en
tertained on this point with regard to George
Wentworth. But for the reasons, which
have been assigned, he must be considered in
the fame situation as the others.
Arguments, deducible from the hardship
of the case, have been advanced andinfifted
upon. It is hard, that George Wentworth,
who was an agent, should be made personally
responsible. It is cruel, that George Went
worth should be cut down by the coilifion of
confiiaing jurifdiaions, But motives If
commiseration, from whatever source they
flow, must not mingle in the administration
ofjuftice. Judges, in the exercise of their
functions, have frequent occasions to ex
claim, " durum, valde durum, fed fie lex
est."
To conclude, the sum of £5,895 1410
appears, on the record, to be the aggregate
value of the Lufaana, her cargo, &, Q
lOn this sum interest, should be ca : ^
• fro,m the 17th Sept. 1783, till the 24th O&.
1794, which will amount to £-3,92: 134
eluded from taking advantage thereof In fu- t
ture, L^-}^
I know, that a 4iftin&ion is made between
foreign and domestic judgments ; that the
latter are conclusive, whereas the former are.
liable to investigation. Be it so. Buris the
principle, upon which this diftin&ion 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 circum
stances.
4. Another objedion is, that interest has
been calculated from a wrong period, towit,
from the 2d Od. 1779 ; and therefore the
decree of the circuit court is erroneous.
George Wentworth received a moiety only ;
he is liable for that, and no more.
3. It is objeded, that the damages award
ed ere joint ; whereas they ought to have
been several. This objection is a found one.
But as the fads are fpreid on the record, it
is in the power of the court to fever the dam
ages, and so to apportion them as to effedu
ate substantial justice. The damages should
have pursued and been admeafured by the
original decree, which directed, that one mo
iety of the proceeds should be paid to the
owners, and the other to the captors.
(, be boldtn at aty juitablt time and place, after
fourteen days from the firft publication of said ad
vertijement. rind the laia Propritiers, by a <uote
of the majority cf thoje prtjrat, or represented, at
said meting, accounting and allowing one vote to
each foare, in all cafes,fall cboofe a Clerk,who
Jhill be feorn to the faithful difebarge of Jaid of
fee—and they Jball also agree on a rotbod of call
tag future meetings—a« at thejams, or any sub
sequent meetings, ma, eleafuch officers, and make
andbftabhfo iuch Rules and Bye-Laws, as to them
shall Jesm neceffar, or convenient, for the regula
tion and government of said Corporation, for car
rying into effia the feur,je afore/aid, and for cel
haing the foil herein after granted and tftablifh
ed — rind the fame Rules and Bye-Laws may cauje
to be executed ; and ma, annex penalties to the
breach thereof, not exceeding ten dollars for an,
one breach—Provided said Rules and Bye-Laws
are not repugnant to the ConJhtution and Laws of
this State ; and all repefentations at an, meeting
of said Corporation fall be proved b, writing
signed by the ptrfon to be reprejented, which shall
be fled by the Clerk ; and this ad, and all Rules,
Bye-Laws, Regulations and Proceedings offaid
Corporation,fall be fairly and truly recorded b,
the Clerk, in a book or books, provided and kept
for that purpose.
And be it further enacted, That the propri
etors aforefaid, be and hereby are permitted and
allowed to erea a Bridge over the river Merri
mac, at any place within the limits of Tucker's
Ferry, Jo called, in Concord ; and the said propri
etors are hereby empowered to purcbaje any lands
adjoining said Bridge, and to lold the fame in fte
fmple — And the fare or fares of an, of said Pro
prietors ma, be transferred b, de<d, duly executed,
acknowledged, and recorded by the Clerk of said
Proprietors, on their Records.
And beat further enacted, That for the pur
pose of reimburfng said proprietors the money ex
pended b, them in building and supporting Jaid
Bridge, a Toll be and hereby is granted and eftab
lifad for the benefit of jaia Proprietors, according
to the rates following, namely, Fo? each foot paj-
J%sr, one cent ; for each borfe and rider, three
cents ; for each borfe and cbaife, chair ,julke,, or
other riding carriage, drawn by one horse only, ten
tents ; for erch riding Jleigb drawn by one boffe,
four cents ; for each riding Jkigb drawn by more
than one borfe,fn cents ; for each coach, chariot,
phaeton, or other four wheeled carriage for pajfa
gers, drawn by more than one horse, twenty cents ;
for each curricle, twelve cents ; for each cart or
other carriage of burthen, drawn by two beasts,
ten cents, and three cents for every additional
beafl ; for each borje or neat creature, exclusive of
those rode on, or in carriages, two cents ; for fbesp
andfwine, one half cent each ; and to each team
one person, and no more, fall bo allowed at a dri
ver to paffree of toll.
And be it further enacted, That the excln
five*Tight cf-butlding and maintaining abridge
acrojsjatd river Merrimac an, where within the
limits of Tucker's ferry, so called, in Concord^be
and thefame is hereby fully granted tofaid petition
ers, and fueb as are, or may be, officiated with
them and become proprietors, their heirs and as
signs.
And be it further enacted, That if any tax
or effeffment, made by said Corporation for com
pleting or repairing the fetid Bridge, oft the several
fares,jball be unpaid at the time limited for the
payment of the fame, the, may proceed to jell the
delinquent'sJhare at public auaton, as the proprie
tors ma, agree and determine ; and if an, overplus
remains after paying the tax or affffments and
charges, it (ball be returned to the delinquent pro
prietor^ \ {
And be it further enacted, That if the above
mentioned Bridgefhall not be completed for travel
ing within three,cars from the time of the paging
hereof, then this ad and every part thereof shall be
null and void.
Provided nevertheless, That the proprietor or
owner of jaid Tucker's ferr,fhall not be interrupt
ed in bis right, until Jaid Bridge shall be built—
and unless the said Proprietors fall pa, the pro
prietor or owner of jaid ferr, four hundred and
fift, dollars, at or before the time said Bridge
fall be made passable, this aajhall be null and
void.
State of Newhampihire.
In the Hottfe@f Referefentotives,
,0^.24,1795.
The foregoing Bill having had three fev
efal readings, passed to be enacted. Sent up
for concurrence.;
JOHN PRENTICE, Speaker.
In Senate, the Jame da,.
' This Bill having been read a third time,
Voted, what the fame be enacted.
EBENEZER SMITH, President of
the Senate.
Approved, Dec. 28, 1795.
J. T. GILMAN, Governor.
A true copy—attest,,
JOSEPH PEARSON, Secretary.
")*- ==■■■= —-— ~
FEDERAL BRIDGE.
WHEREAS the General Court
VV of the State of Newhamplhire,at their
present session, held in Concord, in said state,
granted to the fubferiber, and others, and
^fociates, their heirs and assigns forever, the
exclusive right of building and keeping in
repair, a Toll Bridge acrols the river Merri
INFORMS his friends and the public, that
he has engaged with the Printers of the
Federal Mirror, to ride post with said
paper one quarter of a year, beginning with
No. I§9 —and he proposes to complete one ,
year from said number, if encouragement of.
fers—He rides through the following towns,
viz. Pembroke, Loudon, Pittsfield, Chichef
ter, Epsom, Deerfield, Candia, Cheffer and
Allenftown —He humbly requests the custom
and assistance of all those gentlemen in the
above towns who with for the Freshest News
—He will supply them weekly, (weather al
lowing) at the very moderate rate of only
Eight Shillings a year—to be paid quarterly,
in order that the Post may live and continue
on good terms with the Printers, and they"
with the Papermaker—lt will be very neces
sary to think of this, good Customers, for
the Printers cannot furnish us with News,
unless we pay them well—and two (hillings
a quarter is but a trifle for each customer to
pay—but this will help us to keep on.
Those who live off the road, (hall have pa
pers left at such convenient places on the
road as they may direfl.
Chester, Jan. I, 1796.
■—— ■■ ■■ — ■■■ » l^ll■■^^■■ 11 * ■—■ •— —<
WANTED an Apprentice to
fy JOINER'S BUSINESS;
a lad from 13 to 15 years of age—apply to
the Printers, or to
EBENEZER VIRGIN.
Concord, Jan. 1, 1796. 7
CABINET MAKERS.
ft
Wanted immediately,
Two Journeymen Cabinet Ma
kers, who are good workmen, to whom good
wages will be given—apply to
CHOATE & MARTIN.
Concord, Jan. 1, 1796. 7
ltttßßHUUMMmt#ircUotoS&™B» 3lttro *
OMITTED LAST WEEK.
LONDON, OCT. SO,
At hit Majesty proceeded from the
palace to the House of Peera, an im
mense crowd, confining, it it foppof
ed, of 150,000 perfoos, men, women
&children, wai collected in St.Jamea'
Park & the adjacent ftreett. Among/
these was a desperate mob, consisting
of the very dreg# of the people, whty
evinced a most riotous and mifchiety
out disposition. At hit Majesty wear
through the park, it wai with great
mat, within said town of Concorde near Tu
cker's ferry, so called, under such rules and
regulations as are in said Igfo.t mentioned—
and authorized the fubferiber to notify and
warn the firft meeting ot said grantees and
aflociates—Thefe are therefore to notify and
warn said grantees and affiliates to meet at .
the dwelling house of EBENEZER EAST
MAN, innholder in said Concord, on Mon
day, the iSth day of January next, at one
o'clock in the afternoon — when met,
Ift. To choose a Moderator to govern said
meeting.
2d. To choose a Clerk and Treasurer.
3d. To choose a Director or Directors—
and to trau fact any business that may be
thought will promote and bring forward the
completing said Bridge as soon as poflible^
TIMOTHY WALKER.
Concord, Dec. 31, 1795.
Tlrfe who wife to be concerned in
building said Bridge, are desired
to attend said meeting.
' POSTS.
ENOCH HOIT,
BEGS leave to inform his friends and the
public, that be has contraded with the
Printers of the newspaper Oiled THE FED
ERAL MIRROR, to rice post with said pa
per, for one quarter of a year, through the
towns following, viz. Hopkinton, Henniker,
Warner, Sutton, Bradford, &c. And he pro
poses to ride for a year, or more; if suitable
encouragement is given him by the public
and his friends—whofe custom and a&ftance
he solicits, and assures those who may please
to become his customers for said Mirror,
that he will supply them weekly (very bad
travelling excepted) with said paper, at the
price of two shillings a quarter—to be paid
quarterly—quarterly payments are necessary
to enable him to pay the Printers, that they
may prosecute their business.
Those who live off the road he rides, and
with to take papers, may have them left on
the road, at places most convenient for them,
and leave pay at the fame places.
He intends to enlarge his route confidera^
bly, if he can make it advantageous.
Bradford, Dec. 25, 1795.
EDMUND HILLS,