*297]

The United States v. La Vengeance. 3 D.

AUGUST TERM, 1796.

THE UNITED STATES V. LA VENGEANCE.

3 D. 297.

An information in the district court to enforce the forfeiture of a vessel for exporting arms and ammunition contrary to the act of May 22, 1794, (1 U. S. Stat. at Large, 369,) is a civil cause of admiralty and maritime jurisdiction, and not to be tried by a jury.

ERROR to the circuit court for the district of New York. The district attorney filed an ex officio information in the district court against the French privateer La Vengeance, alleging that certain arms and ammunition were exported in that schooner, contrary to the act of May 22, 1794, (1 U. S. Stat. at Large, 369.) The owner of the schooner filed a claim and answer, denying the exportation of arms, and as to the gunpowder, alleging it to have been part of the supplies of the Semillante, a frigate belonging to the republic of France, and to have been taken from the frigate, and put on board the schooner, by order of the proper officer of the republic. The district judge decreed a forfeiture, but on appeal this decree was reversed by the circuit court, sitting without a jury.

The only questions made by the attorney-general on this writ of error were, whether this was a civil cause, and a cause of admiralty and maritime jurisdiction.

[301]

*The chief justice informed the opposite counsel, (Du Ponceau,) that as the court did not feel any reason to change the opinion, which they had formed upon opening the cause, they would dispense with any further argument; and on the 11th of August, he pronounced the following judgment.

BY THE COURT. We are perfectly satisfied upon the two points that have been agitated in this cause. In the first place, we think, that it is a cause of admiralty and maritime jurisdiction. The exportation of arms and ammunition is, simply, the offence; and exportation is entirely a water transaction. It appears, indeed, on the face of the libel, to have commenced at Sandy Hook; which, certainly, must have been upon the water. In the next place, we are unanimously of opinion, that it is a civil cause: it is a process of the nature of a libel in rem; and does not, in any degree, touch the person of the offender.

In this view of the subject, it follows, of course, that no jury was necessary, as it was a civil cause; and that the appeal to the circuit

Cotton v. Wallace. 3 D.

court was regular, as it was a cause of admiralty and maritime jurisdiction. Therefore,

Let the decree of the circuit court be affirmed, with costs.

But on opening the court the next day, the chief justice directed the words "with costs" to be struck out of the entry, as there appeared to have been some cause for the prosecution. He observed, however, that in doing this, the court did not mean to be understood, as at all deciding the question, whether, in any case, they could award costs against the United States; but left it entirely open for future discussion.

2 C. 406, 443; 7 C. 112; 1 W. 9; 8 W. 391; 9 W. 421; 7 P. 324; 5 H. 441; 6 H. 344. 20 H. 296; 6 Wal. 759, 766; 7 Wal. 644.

*COTTON, Plaintiff in Error, v. WALLACE.

3 D. 302.

[ * 302 ]

When a judgment or decree is affirmed on a writ of error, there can be no allowance of damages, except for delay.

Eight per cent. per annum allowed.

ERROR to the circuit court for the district of Georgia. The decree of the circuit court in favor of the libellant having been affirmed, a question arose concerning a claim for damages on affirmance. It appeared, that the libel prayed for restitution of the brig Everton and her cargo, "and all the damages and costs that have arisen by occasion of the premises." The brig and cargo had been sold. Restitution was decreed by the circuit court, but no decree for damages was made either by the district or circuit court.

After the decree of the circuit court had been affirmed, the libellant applied to that court to have damages assessed. The judges differed as to the propriety of so doing, and thereupon Reed, for the libellants, applied to this court, and offered evidence of the amount of the damages.

PATERSON, J. Do you mean to go out of the record to prove your damages; or is your estimate of damages founded upon what appears on the record itself?

Reed. The record does not show the extent of our damages, though the decree will entitle us to recover the full amount. We

Cotton v. Wallace. 3 D.

wish, therefore, by matter dehors the record to ascertain that

amount.

[ *304 ]

* IREDELL, J. This case is distinguishable from the case of Penhallow v. Doane, 3 D. 54, for there the damages were decreased, to the benefit of the plaintiff in error. In the case of Talbot v. Janson, however, it appears from the decree, that increased damages were allowed to the defendant in error. 3 D. 133.

CHASE, J. In the case of Talbot v. Janson, did the court go back beyond the decree of the circuit court, to increase the damages; or was the increase allowed merely for the delay in executing that decree?

PATERSON, J. In every case in which there has been adjudged either a decrease or an increase of damages, the facts that regulated the decision of the court arose and appeared upon the record. I have always, however, entertained, and still entertain great doubts, whether a writ of error is the proper remedy to remove an admiralty

cause.

On this remark, the other counsel employed (Lewis and E. Tilghman, for the plaintiff in error, and Ingersoll, for the defendant in error) left the general question of damages to the court on the argument already stated, and entered into a discussion upon the regularity of the process by which the cause had been removed. See post, Wiscart et al. v. Dauchy, 3 D. 321; Jennings et al. v. The Brig Perseverance, 3 D. 336.

After advisement, the chief justice delivered the opinion of the court, that where a judgment or decree was affirmed on a writ of error, there could be no allowance of damages, but for the delay; and thereupon the following order was made in this cause:

BY THE COURT. It is ordered, that the defendant in error recover, as damages, against the plaintiff in error, the sum of $3,515.11, being the interest on $34,841.55, the amount of the sales of the brig Everton and her cargo, from the 5th of May, 1795, the date of the decree of the circuit court in the said cause, being one year, three months, and four days, at the rate of eight per cent. per annum: and, also, that the said plaintiff in error do pay the costs accrued in this cause since the last term. And a special mandate is awarded to carry this order into execution.

Hunter v. Fairfax's Devisee. 3 D.

* HUNTER v. FAIRFAX'S DEVISEE.

[*305]

3 D. 305.

The death of the only counsel of a party, so recently before the term, that sufficient time to employ other counsel and have the case prepared for argument had not elapsed when the term began, is cause for continuing a case of magnitude and difficulty.

THE plaintiff in error applied for a continuance upon the ground that his counsel had died on the 18th, and he learned his death on the 25th of July. The motion was opposed. But,

BY THE COurt. In all questions of this nature, we must be governed by a sound discretion; in order to prevent, on the one hand, an unnecessary procrastination, and, on the other hand, to avoid an injurious precipitation of trials. In the present instance, we think there is a sufficient foundation laid before us, to justify our granting a continuance until the next term. If the cause were now to be taken up, it must be heard and decided ex parte. It is true, that counsel might even at this time be employed, so as to admit, perhaps, of an argument before the court rises; but it is reasonable, that in a cause of such magnitude,1 the counsel should have an opportunity to investigate the principles, and to con- [*306 ] sider the authorities connected with it, out of term, and unencumbered by the pressure of the current business of the court. Let the cause be continued.

1 The attorney-general stated the point in controversy to arise on these facts: Lord Fairfax was a citizen of Virginia, and died in the year 1780; having made a will by which he devised certain lands in that State to the defendant in error, who then was, and ever has been, a British subject, resident in Great Britain. The question is, whether being thus an alien, the defendant in error can take and hold the lands by devise? And, it will be contended, that his title is completely protected by the treaty of peace concluded between the United States and Great Britain in the year 1783.

CHASE, J. I recollect, that in Harrison's case, a decision in favor of such a devisee's title was given by a court in Maryland. It is a matter, however, of great moment; and ought to be deliberately and finally cattled,

20*

Moodie v. The Ship Alfred. 3 D.

[* 306 ]

*ARCAMBEL v. WISEMAN.

3 D. 306.

Counsel fees not allowed as part of the damages.

THE decree of the circuit court for the district of Rhode Island, was affirmed in this cause without argument, the principal question which it involved having been just decided upon the discussion of another writ of error. It appeared, however, by an estimate of the damages on which the decree was founded, and which was annexed to the record, that a charge of $1,600 for counsel's fees in the court below had been allowed; to which Coxe objected; and Ingersoll contended that it might fairly be included under the idea of damages. But,

BY THE COURT. We do not think that this charge ought to be allowed. The general practice of the United States is in opposition to it; and even if that practice were not strictly correct in principle, it is entitled to the respect of the court, till it is changed or modified by statute.

There are several ways in which the charge may be expunged: but we recommend, as, perhaps, the easiest way, that the counsel for the defendant in error should enter a remittitur for the amount. A remittitur was accordingly entered.

3 D. 336.

[ *307 ]

MOODIE v. The Ship ALFRED.

3 D. 307.

It is not a violation of the neutrality laws of the United States to sell to a foreigner a ves sel built in this country, though suited to be a privateer, and having some equipments calculated for war, but frequently used by merchant ships.

THE allegation in this case, as supported by the evidence was, that the privateer, which took the British prize in question, had been built in New York, with the express view of being employed as a privateer,