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United States v. Netcher.

cause, leaving one Thomas Turner, a seaman of the said ship, on shore in a foreign port, called Coupang, in the Dutch Island Tima, in the Chinese seas, contrary to the 10th section of the Crimes Act of 1825, ch. 276. Plea, not guilty.

The cause was argued by Mills, District Attorney, for the United States, and by B. R. Curtis, for the defendant. But the facts being established, the case ultimately turned upon the question of the true construction of the statute.

STORY J. The tenth section of the Crimes Act of 1825, ch. 276, provides, "That if any master or commander of any ship or vessel belonging in whole or in part to any citizen or citizens of the United States, shall, during his being abroad, maliciously and without justifiable cause, force any officer or mariner of such ship or vessel on shore, or leave him behind in any foreign port or place, or refuse to bring home again all such officers and mariners of such ship or vessel, whom he carried out with him, as are in a condition to return, and are willing to return, when he shall be ready to proceed in his homeward voyage, every master or commander so offending shall, on conviction thereof, be punished by fine, &c. &c." In my judgment, this section enumerates three distinct and independent offences; (1.) The maliciously and without justifiable cause, forcing any officer or mariner on shore in any foreign port; (2.) The maliciously and without justifiable cause, leaving such officer or mariner behind in any foreign port; and (3.) The maliciously and without justifiable cause, refusing to bring home again all the officers and mariners of the ship in a condition to return and willing to return on the homeward voyage. It is not necessary, therefore, as the argument at the bar supposes, that the officer or mariner should have been forced on shore, as well as left behind, or refused to be brought home, in order to constitute an offence within the true intent

United States v. Netcher.

of the statute. It is sufficient if the officer or mariner is either forced on shore, or left behind, or refused to be brought home. In the present case, there is no pretence to say, that the mariner was forced on shore. But it is perfectly clear, that he was maliciously (that is, wilfully and designedly) and without justifiable cause, left behind in a foreign port. It is also said, that the mariner was not willing to return home in the ship, and therefore the case is not within the provisions of the statute. But this (as has been already intimated) is not necessary to a completion of the offence of maliciously, and without justifiable cause, leaving him behind in a foreign port. The grammatical order and connexion of the language requires the words, "as are in a condition to return and willing to return," to be read as a part of the last clause of the section, and not as a part of the prior clauses of forcing ashore, or leaving behind. It would sound strange to say, that if the master shall force any officer or mariner on shore, he would not be within the penalty of the statute, unless such officer or mariner were in a condition to return and willing to return in the ship. And yet the words must be applied equally in all the cases stated in the section, unless they are limited to the last clause, viz. the refusal to bring home the officer or mariner. In this connexion, they have their just and natural import and effect. In the present case, indeed, the defendant had no option at all allowed him. He went on shore voluntarily, it is true, in the ship's service; but the master thereupon put him in gaol, and there had him kept in confinement until the ship sailed from the port. It is true, that the mariner had previously applied to the master to be discharged, and was willing to be discharged from the ship. But the master refused to discharge him; and inflicted upon him the imprisonment, as a punishment for some real or supposed abusive language, used by the mariner, in consequence of his refusal to give him a discharge.

Albers et al. v. Whitney et al.

In short, the master maliciously and without justifiable cause, sent the mariner to prison, and left him behind, without even giving him an opportunity to express willingness or unwillingness to return. It is one thing to have a free discharge in a foreign port, and quite another thing to be left in prison there, under the pretence of promoting the wishes of the party.

Upon this intimation of the opinion of the Court, the defendant, with the consent of the District Attorney, withdrew his plea of not guilty, and pleaded nolo contendere, and thereupon received the sentence of the Court.

JOHN H. ALBERS AND CHRISTIAN BORN

v.

ALBERT WHITNEY AND OTHERS.

The Judiciary Act of 1789, ch. 20, § 32, gives no authority to the Courts of the United States to make any amendments in judgments, except as to defects and want of form.

The doctrine of the English Courts in all cases of ordinary suits, (excluding fines and recoveries,) is, that judgments and records, are amendable only, (1st.) where the case is within the reach of some statute; and (2d.) where there is something to amend by.

At common law, no judgment was amendable after the term at which it was entered.

Where the name of a party was erroneously stated in the writ to be James H.

Alvers, instead of John H. Albers, which was the true name; It was held, that, as the misnomer was a mistake of fact, not apparent upon the record, and not to be amended by any matter apparent in any part of the record, the Court were not authorized to make the amendment.

MOTION to amend the record of this case, in which judgment was rendered at the last term of this Court, and execution

Albers et al. v. Whitney et al.

issued, upon which one of the defendants was arrested and committed to gaol, and afterwards was sworn out of gaol under the Insolvent Debtors Acts. The petition was as follows:

"Your petitioners, John H. Albers and Christian Born, of the city, county, and State of New York, merchants, under the firm and style of J. H. Albers & Born, respectfully state, that at the last April Term of this Court, they recovered judgment, as plaintiffs, in a certain action against Albert Whitney, Rufus C. Kemp, and Benjamin L. Mann, all of said Boston, merchants and copartners under the firm of Whitney, Kemp, & Co.; that, by a slight clerical error in the writ, the name of said Albers was written James H. Alvers, instead of John H. Albers, and in consequence thereof, so appears in the record of the judgment in said action. Wherefore, they humbly pray, that the record of the proceedings and judgment in said case be amended, by inserting John H. Albers in place of James H. Alvers, where the same occurs.

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E. H. Derby, in support of the application, cited the following authorities. Gay v. Caldwell (Hardin, 64); Brown v. Green (6 Monroe, 341); Probasco v. Probasco (2 Penn. 1012); Marsh v. Berry (7 Cow. 344; 3 Cow. 43, note); Smith v. Jackson (Paine, 486); Jackson v. Young (1 Cow. 131); Heale v. Williams (1 Fairf. 278); Bank of Newburgh v. Seymour (14 Johns. 219); Statute of Amendment and Jeofails (10 John. 507).

STORY J. The power of this Court to grant amendments is dependent upon statute; and, so far as it has been provided for, it is by the 32d section of the Judiciary Act of 1789, ch. 20. That section provides, "That no summons, writ, declaration, return, process, judgment, or other proceedings in civil causes, in any of the Courts of the United States, shall be abated, arrested, quashed, or reversed, for any defect or

Albers et al. v. Whitney et al.

want of form; but the courts shall respectively proceed and give judgment according as the right of the cause and matter of law shall appear to them, without regarding any imperfections, defects, or want of form, in such writ, &c.," except only such as the party shall specially set down by demurrer as causes thereof. The Courts are further authorized from time to time to amend all such imperfections, defects, and want of form, other than those set down by demurrer. The statute then proceeds to declare, that the Courts "may at any time permit either of the parties to amend any defect in the process or pleadings, (not adding, as in the preceding part of the section, 'judgments and proceedings,') upon such conditions as the said Courts respectively shall, in their discretion and by their rules, prescribe."

Now, upon the foundation of this section, no authority is given to the Courts of the United States to make any amendments in judgments, except as to defects and want of form. In the present case, the amendment is not of any matter or defect of form. The form of the declaration is right. The defect proposed to be remedied is a mistake of fact in the christian name of one of the plaintiffs. This mistake, too, is not apparent on the record, nor is it to be amended by any matter, apparent upon other parts of the record. But it is to be made out upon affidavits and evidence aliunde to establish the fact. There is, therefore, nothing on the record to amend by.

It is plain, that at the common law no judgment was amendable after the term at which it was entered. And amendments could be made in the process, pleadings, and proceedings only while the cause stood in paper, and before judgment. The authority to amend, then, even in England, in cases of this sort, is dependent upon and limited by statute. Mr. Tidd, in his excellent work on Practice, has laid this down, as the clear doctrine of the Courts, in all cases of ordinary suits (excluding

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