1807 JENNINGS V. CARSON. distribution, not for the preservation of the property, nor to hold it in custody of the law. No security was given by the captors or by the marshal. No public notice was given of the sale; no such notice was required by the order of sale. The sale was made thirteen days after the order was suspended by the appeal, and the captor was the purchaser. The case was before the court of appeals upon its particular circumstances as well as upon its general merits; and the fact of the sale after the appeal must have been known to the court. Two years had elapsed since the original sentence. A restitution of the thing itself was impossible; and the form of the decree of reversal must have been a matter in question. If the sale had been regularly and lawfully 20*] made, the court of appeals would *have taken notice of it, and have decreed restora3 Dall. 102, tion of the proceeds of the sale. It was a fact of 115, 119, Penhallow v. Doane. which the captor might have availed himself before that court. But the marshal is to be considered merely as the agent of the captor. The claimant had no remedy but against the person of the captor. There is no evidence that the proceeds of the sale are anywhere to be found. The original libel did not ask for process to arrest the vessel, but merely prayed for condemnation. The possession, and the right of possession, were in the captor. There was no proThe first process was cess to attach the vessel. a monition and venire for the jury. The marshal could have no right to possession, unless by virtue of process of attachment. There is no order in the whole proceedings which takes the possession from the captor. After the appeal the order of sale was a nullity, and the sale by the marshal was as the agent of the captor, who was a trustee for the claimant, and had no right to sell; and is, therefore, liable for all the consequences. February 11. MARSHALL, Ch. J., delivered the opinion of the Court. So far as this bill seeks to carry into effect the decree of the 23d of December, 1780, there is no doubt of the jurisdiction of the court; but the relief granted can only be commensurate with that decree. It is, therefore, all essential to the merits of this cause to inquire how far Joseph Carson, the testator of the defendants, was bound by the sentence which this court is asked to carry into effect. The words under which the plaintiffs claim are those which direct the restoration of the George and her cargo. As the captors are not ordered by name to effect this restoration, and as the order bound those in possession of the subject on which it must be construed to operate, it must be considered as affecting those who could obey it, not those who were not in possession of the thing to be restored, had no power over it, and were, consequently, unable to Had Richard D. Jennings appearredeliver it. ed before the court of New Jersey with this decree in his hand, and demanded its execution, the process of that court would have been directed to those who possessed the thing to be restored, not to those who held no power over it, either in point of fact or law. This position appears too plain to require the aid of precedent, but if such aid should be looked for, the case of Doane v. Penhallow unquestionably affords it. In that case a decree of reversal and restitution was satisfied by directing the proceeds of the sales to be paid; and even the judge who tried the cause at the circuit concurred with his brethern in reversing his own judgment, so far as it had decreed joint damages, and had thereby rendered the defendant liable for more than he had received. The case of Doane v. Penhallow, therefore, which must be considered as expounding the decree *of the court of appeals now under con- [*22 sideration, has decided that Joseph Carson was bound to effect restitution by that decree so far only as he was, either in law or in fact, possessed of the George and her cargo, or of the proceeds. To this point, therefore, the inquiries of the court will be directed. In prosecuting them it will be necessary to ascertain whether, 1st. The George and her cargo were, previous to the sentence, in the custody of the law, or of the captors. The privateer Addition, cruising under a commission granted by the Congress of these United States during the war between this country and Great Britain, captured the sloop George, brought her into port and libelled her in the court of admiralty for the state of New 2d. Whether the court of admiralty, after an Jersey, where she was condemned as lawful prize by a sentence rendered on the 31st of Oc-appeal from their sentence, possessed the power tober, 1778, and ordered to be sold by the mar- to sell the vessel and cargo, and to hold the proshal. From this sentence Richard D. Jennings, ceeds for the benefit of those having the right. It appears that the court of New Jersey, the owner, prayed an appeal, which, on the 23d of December, 1780, came on to be heard which condemned the George and her cargo as before the court of appeals constituted by Con- prize, was established in pursuance of the gress, when the sentence of the court of Jersey recommendation of Congress, and that no legiswas reversed, and restitution of the vessel and lative act had prescribed its practice, or defined cargo was awarded. Pending the appeal, on its powers. the 13th of November, 1778, the order of sale 21*] *was executed, and the proceeds of sale It does remained in possession of the marshal. not appear that any application was ever made to the court of New Jersey to have execution of the decree of the court of appeals, and this suit is brought to carry it into execution, or on some other principle to recover from the estate of Joseph Carson, who was part owner of the privateer Addition, the value of the George and her cargo. The act produced in court was But the Court passed at a subsequent period, and, consequently, cannot govern the case. cannot admit the correctness of the argument It cannot be admitted that drawn from this act by the counsel for the plaintiffs in error. an act defining the powers and regulating the The reverse of this practice of a pre-existing court, contains proSuch an act may visions altogether new. proposition is generally true. rather be expected to be confirmatory of the practice and of the powers really exercised. 537 Since we find a court instituted and proceeding to act as a court, without a law defining its practice or its powers, we must suppose it to have exercised its powers in such mode as is employed by other courts instituted for the object, and as is consonant to the general principles on which it must act. That by the practice of courts of admiralty a vessel when libelled is placed under the absolute 23*] control of the court, is not controverted; but the plaintiffs contend that this power over the subject is not inherent in a court of admiralty, but is given by statute, and in support of this opinion the prize acts of Great Britain have been referred to, which unquestionably contain regulations on this point. But the Court is not of opinion that those acts confer entirely new powers on the courts whose practice they regulate. In Browne's Civil and Admiralty Law, in his chapter on the jurisdiction of the prize courts, it is expressly stated that those courts exercised their jurisdiction anterior to the prize acts, and the same opinion is expressed by Lord Mansfield, in the case of Lindo v. Rodney, which is cited by Browne. The prize acts, therefore, most probably regulated pre-existing powers in the manner best adapted to the actual circumstances of the time. It is conceived that the constitution and character of a court of admiralty, and the object it is to effect, will throw much light on this subject. arrest of the ship. In Browne, 405, the course of proceedings against a ship, not for a debt, but to obtain possession, is stated at length, and in that case, too, the court takes possession of the ship. It must be supposed that a court of admiralty, having prize jurisdiction, and, consequently, proceeding in rem, and not having its practice precisely regulated by law, would conform to those principles which usually govern courts proceeding in rem, and which seem necessarily to belong to the proper exercise of their functions. If in proceeding against a ship to subject her to the payment of a debt, or to acquire the possession of her on account of title, the regular course is, that the court takes the vessel into custody and holds her for the party having right, the conclusion seems irresistible, that in proceeding against a ship to condemn her as prize to the captor, or to restore her to the owner who has been ousted of his possession, the court will also take the vessel into custody, and hold her for the party having the right. This reasoning is illustrated, and its correctness in a great measure confirmed, by the legis lation of the United States, and the judicial proceedings of our own country. By the judiIcial act the district courts are also courts of admiralty, and no law has regulated their practice. Yet they proceed according to the general rules of the admiralty, and a vessel libelled is always in possession of the law. *An objection, however, to the applica- [*25 tion of this reasoning to the case before the court drawn from the defectiveness of the record in the original cause, which does not exhibit a warrant to the officer to arrest the George. The first step which appears to have been taken by the court is an order to the marshal to summon a jury for the trial of the case. The proceedings of that court are in rem, and their sentences act on the thing itself. They decide who has the right, and they order its deliv-is ery to the party having the right. The libellant and the claimant are both actors. They both demand from the court the thing in contest. It would be repugnant to the principles of justice, and to the practice of courts, to leave the thing in possession of either of the parties, without security, while the contest is depending. If the practice of a court of admiralty should not place the thing in the custody of its officers, it would be essential to justice that security should be demanded of the libellant to have it forthcoming to answer the order of the court. If the captor should fail to libel the captured vessel, it has been truly stated in argument that, the owner may claim her in the court of admiralty. How excessively defective would be the practice of that court, if, on receiving such a claim, it neither took possession of the vessel, nor required security that its sentence should be performed. Between the rights of a claimant where a libel is filed and where it is not filed, 24*] no distinction is perceived, and the court conceives the necessary result of proceedings in rem to be, that the thing in litigation must be placed in the custody of the law, and cannot be delivered to either party but on sufficient security. In conformity with this opinion is the practice of the court of admiralty, not only when sitting for the trial of prizes, and acting in conformity with the directions of positive law, but when sitting as an instance court, and conform ing to the original principles of a court of admiralty. In his chapter "on the practice of the instance court," under the title of “proceedings in rem,” p. 597, Browne states explicitly, that when the proceeding is against a ship, the process commences with a warrant directing the The carelessness with which the papers of a court created for the purposes of the war, and which ceased to exist before the institution of this suit, have been kept, may perhaps account for this circumstance. At any rate, the court of admiralty must be presumed to have done its duty, and to have been in possession of the thing in contest, if its duty required that possession. The proceedings furnish reasons for considering this as the fact. The libel does not state the George to have remained in possession of the captors, that the sale was made for them, or by their means, nor that the proceeds came to their hands. The answer of the defendants avers that on bringing the George into port, she was delivered up with all her papers to the court of admiralty, and, although the answer is not testimony in this respect, yet the nature of the transaction furnishes ample reason to believe that this was the fact; and it is the duty of the plaintiff to show that the defendants are in a situation to be liable to his claim. If the process of the court of admiralty does not appear regular, this court, not sitting to reverse or affirm their judgment, but to carry a decree of reversal and restoration into effect, must suppose the property to be in the hands of those in whom the law places it, unless the contrary appears. The George and her cargo, therefore, must be considered as being in custody of the law, unless the contrary appears. If this conclusion be right, it follows that the regularity of the sale is a question of no impor tance to the defendants, since that sale was the 2. Whether the court of New Jersey, after an appeal from its sentence, possessed the power of selling the George and her cargo, and holding the proceeds for the party having the right. That the British courts possess this power is admitted, but the plaintiffs contend that it is conferred by statute, and is not incident to a prize court. jurisdiction of the court, and to grow out of the principles which form its law. A prize court, not regulated by particular statute, would proceed on the same principles; at least there is the same reason for it. But there is in this case no distinct order of sale. The order is a part of the sentence from which an appeal was prayed, and is, therefore, said to be suspended with the residue of that sentence. The proceedings of the court of admiralty, if they are all before this court, were certainly very irregular, and much of the difficulty of this case arises from that cause; but as this case stands, it would seem entirely unjust to decree the defendant to pay a heavy sum of money, | because the court of admiralty has done irregu larly that which it had an unquestionable right to do. That the power exists while the cause is depending in court seems not to be denied, and indeed may be proved by the same authority, and the same train of reasoning, which has already been used to show the right to take possession of the thing whenever proceedings are in rem. Browne, in his chapter on the practice | Since the court of admiralty possessed the of the instance court, shows its regular course to power of making a distinct order of sale imbe to decree a sale where the goods are in a per-mediately after the appeal was entered, and ishable condition. The plaintiffs allege that this power to decree | a sale is founded on the possession of the cause, but the court can perceive no ground for such an opinion. It is supported by no principle of analogy, and is repugnant to the reason and nature of the thing. In cases only where the subject itself is in possession of the court, is the order of sale made. | If it be delivered on security to either party, an order of sale pending the cause is unheard of in admiralty proceedings. The motive assigned for the order never is that the court is in possession of the cause, but that the property in possession of the court is in a perishable state. A right to order a sale is for the benefit of all parties, not because the case is depending in that particular court, but because the thing may perish while in its custody, and while neither party can enjoy its use. If, then, the principle on which the power of the court to order a sale depends, is not that the cause is depending in court, but that perishable property is in its possession, this principle exists in as much force after as before an appeal. The property does not follow the appeal into 27*] the superior *court. It still remains in custody of the officer of that court in which it was libelled. The case of its preservation is not altered by the appeal. The duty to preserve it is still the same, and it would seem reasonable that the power consequent on that duty would be also retained. On the principles of reason, therefore, the court is satisfied that the tribunal whose officer retains possession of the thing retains the power of selling it when in a perishing condition, although the cause may be carried by appeal to a superior court. This opinion is not unsupported by authority. this, but for the depreciation, would *have [*28 been desirable by all, it is not unreasonable to suppose the practice to have been to consider the appeal as made from the condemnation, and not from the order of sale. The manner in which this appeal was entered affords some countenance to this opinion. In the recital of the matter appealed from, the condemnation alone, not the order of sale, is stated. The court will not consider this irregularity of the admiralty, in ordering what was within its power, as charging the owners of the privateer, under the decree of the 23d of December, 1780, with the amount of the sales of the George and her cargo, which in point of fact never came to their hands, and over which they never possessed a legal control, for the marshal states himself to hold the net proceeds to the credit of the former owners. It is, therefore, the unanimous opinion of this court, that the decree of the 23d of December, 1780, does not require that the restoration and redelivery which it orders should be effected by the captors, but by those who in point of law and fact were in possession either of the George and her cargo, or of the money for which they were sold. As the officer of the court of New Jersey, not the captors, held this possession, the decree operates upon him, not upon them. On that part of the libel in this case which may be considered as supplemental, and as asking relief in addition to that which was given by the decree of the 23d of December, 1780, the court deems it necessary to make but a very few observations. The whole argument in favor of this part of the claim is founded on the idea that the captors were wrongdoers and are responsible for all the loss which has been produced by their tortious act. The sentence of reversal and restoration is considered by the plaintiffs as conclusive evidence that they were wrongdoers. In his chapter on the practice of the instance court, page 405, Browne says, If the ship or goods are in a state of decay, or of a perishable But the court can by no means assent to this nature, the court is used, during the pendency principle. A belligerent cruiser who, with of a suit, or sometimes after sentence, notwith- probable cause seizes a neutral and takes her -tanding an appeal, to issue a commission of into port for adjudication, *and proceeds [*29 appraisement and sale, the money to be lodged regularly, is not a wrongdoer. The act is not with the registrar of the court, in usum jus ha-tortious. The order of restoration_proves that bentis." This practice does not appear to be established by statute, but to be incident to the the property was neutral, not that it was taken without probable cause. Indeed, the decree of the court of appeals is in this respect in favor of the captors, since it does not award | ond mate and 21 of the seamen taken out, and damages for the capture and detention, nor give costs in the suit below. two British officers and 15 seamen put on board, with orders to take her into a British port. The second mate was put on board another vessel, and arrived in New York on the 26th of February, when he gave the above information to the plaintiff, who, on the 28th of February. communicated it by his letter of abandonment of that date, to the defendants. The Manhattan, with her cargo, was carried into Bermuda on the 12th of February, and libeled as prize of war. On the 20th of April, 1805, both vessel and cargo were acquitted. From this sentence, so far as it respected the cargo only, an appeal was prayed, which does not appear to have been decided; but on the 8th of May the cargo was delivered to its owners, on their giving security; and on the 8th of July the vessel and cargo arrived in New York; but before their arrival, the defendants having refused to give counter security, so as to rehieve the owners of the cargo from the effect of the security which they had given upon getting possession of their goods, the plaintiff, on the 6th of June, 1805, after the vessel was liberated. brought the present suit. Upon the arrival of the vessel and cargo, Minturn & Champlin gave security to abide the award of the arbitrators concerning the freight, according to the covenant in the charter party, and obtained possession of the cargo. Hopkinson, for the plaintiff, contended, 1. That there had been a total loss of the property insured, occasioned by a peril within the terms of the policy. 2. That the abandonment was made in due time. The defendants insured 12,500 dollars, on the freight of the plaintiff's American ship The Man- *Whenever a vessel is captured by a [*31 hattan, which had been chartered by Minturn & belligerent as prize, whether the belligerent be Champlin, for a voyage from New York to a friend or an enemy, the loss is total, so long Batavia, and back to New York. The freight as the detention exists; and vests a complete was valued in the policy at 50,000 dollars. The right of abandonment. It is not the state of the charter party contained a covenant that if any information received, but the actual state of the dispute should arise between the plaintiff and fact, which justifies the abandonment, and gives Minturn & Champlin respecting the freight, the the right to recover as for a total loss. The vescargo should not be detained by the plaintiff, sel was actually libeled as prize at the time of 30*] provided they should give good security the abandonment, although no information of to abide by the award of arbitrators, who were such libel had been received by the plaintiff; to be appointed to settle such dispute. On her and, therefore the case is clearly within the homeward voyage, on the 10th of February, doctrine established by the supreme court of 1805, the ship was taken and detained on the Pennsylvania, in the case of Dútilgh r. Gatliff. high seas by a British armed vessel, and the sec-decided a few days ago; that if the vessel be 1.- Decided January 17th, 1807. The opinion of Ch. J. Tilghman. as published in the United States Gazette, of the 20th of the same month, is as follows: On the 24th of September, 1799, the defendant, Samuel Gatliff, underwrote seven hundred and fifty dollars upon a policy of insurance on the schooner Little Will, belonging to John Dutilgh and Thomas Lillibridge, for whom the plaintiff was agent, on a voyage at and from Philadelphia to Havanna. it was known to John Dutilgh, one of the owners and supercargo, who was with her at Nassau. On the 13th day of November, the plaintiff wrote the letter of abandonment, enclosing the papers therein referred to, which was received by the defendant the same day. On the 20th of November the said schooner sailed from Nassau for Havanna, where she arrived on the 21st of the same month, and sold her cargo, except three boxes plundered at New Providence. Afterwards, the said schooner sailed from Havanna On the 25th of September, 1799, the Little Will for Philadelphia, where she arrived on the 26th or sailed on her voyage from Philadelphia for Havan-27th of February, in the year 1800, with a cargo of na, and on the 8th day of October following she sugars, on which freight became due, and was rewas captured by three British privateers, and car-ceived by Stephen Dutilgh for the benefit of those ried into the port of Nassau, New Providence, who were entitled to it; each party refusing to acwhere she arrived on the 13th of the same month. cept her, she was sold for wharfage, and the whole Upon her arrival in Nassau, the said schooner proceeds of sale applied to the payment thereof. was libeled in the admiralty court, and on the 9th The schooner Little Will was American property, day of November following was regularly acquit- as warranted. ted; and in the whole she remained thirty-seven days at Nassau, during thirty-five of which she was in custody of the captors; but the fact of her acquittal was not known to the plaintiff until after the abandonment hereafter mentioned; although The question for the court is, whether the plaintiff is entitled to recover as for a total loss? Opinion of the Court delivered by W. Tilghman, Ch. J. On the case thus stated, the question sub 1807 32*] libeled by the *captors as prize, it is such a capture as gives the insured a complete right to abandon; and to recover as for a total loss. Although the Manhattan and cargo 33*] *were acquitted by the vice-admiralty court before the return of the writ in the present case, yet the acquittal, as to the cargo, was 34*] suspended by the appeal; and the property was not, in fact, put into the possession of the freighters, until they had given security to its full value, to return it to the captors in case 35*] the sentence of acquittal *should be reversed. As to them, therefore, the property was not restored. It never arrived in safety. Its trial was still pending, and if it should finally be condemned, the freighters would never be liable to the plaintiff for the freight. As to the plaintiff, therefore, it still continues a total loss of the freight. He cannot, in any event, recover it from the freighters until the appeal is decided, and if that decision should be against the latter, his only chance would be in the hope of justice from the courts of the captors, who, upon condemnation of the cargo, sometimes order the freight to be paid to the owner of the ship, if he is a fair neutral, and has no interest in the cargo. Nothing but relieving the freighters from the security they had given for the cargo could entitle the plaintiff to recover against them. The underwriters, therefore, were bound either to pay to the plaintiff the amount they had insured, or, by giving such counter security as should indemnify the freighters, give the plaintiff a right of action against them. The latter part of the alternative the defendants have refused. The case of Da Costa v. Newnham, 2 T. R. 407, shows that the underwriters were bound to give such counter security, or to pay the amount insured. The property never came free into the hands of the freighters. The right of action depends upon the facts existing at the time of abandonment. In the case of Mumford e. Church, decided by the supreme court of New York, at July term, 1799, the assured recovered notwithstanding a restoration before abandonment. But the assured cannot retract his abandonment, and it is not just that one party should be bound, and the other at liberty. If the plaintiff had a right to abandon, the defendants were bound to accept. For the defendants, Rawle and Lewis contended, mitted to the court is, whether the plaintiff is entitled to recover for a total loss? In resolving this question, I shall divide it into two points. 1. Did there ever exist a total loss? 2. Supposing that there once existed a total loss, has any circumstance occurred which excludes the plaintiff from recovering for more than a partial loss? 1. The case before us includes one of the risks expressly mentioned in the policy, a taking at sea. But it has been objected that this taking was not by an enemy, and that when a belligerent takes a neutral, it is to be presumed that the taking is only for the purpose of searching for the property of his enemy, or goods contraband of war, and that in the end, justice will be done to the neutral. To a certain extent there is weight in this distinction; but it must not be carried too far. At the time when the capture in question was made, the United States acknowledged the right of the British to detain their vessels for the purpose of a reasonable search. The bare taking of the vessel, therefore, could by no means constitute a loss; and if under suspicious circumstances she should be carried into 1. That there never was a total loss; and, consequently, the plaintiff never had a right to abandon. #2. That before the action was brought, [*36 the vessel was acquitted, and therefore no right of action existed. 3. That before the return of the writ, the vessel and cargo had arrived in safety at the port of destination, and the freight was earned, and that the plaintiff might recover it from the freighters. 4. That the plaintiff had voluntarily suffered the cargo to be delivered without payment of the freight, and had lost his lien on the goods by his own folly, and, therefore, had no right to recover from the underwriters. They admitted that the defendants were liable for a partial loss to the amount of the charges, expenses, &c., in consequence of the capture; but denied that the plaintiff could claim for a total loss. The information received at the time of the offer to abandon was only of an arrest and detention; which, as the Manhattan was a neutral vessel, must be presumed to be only for the purpose of exercising the belligerent right of search; and such a detention has never been holden to give a right to abandon. But a capture by a friend differs from a capture by an enemy. Park, 66. It is presumed that the courts of our friend will do us justice, and restore our property without delay. Hence no salvage is allowed for the recapture of a neutral If the from the power of one of the belligerents, unless under very particular circumstances. capture of a neutral be not followed by condemnation, it is not a total loss, unless the voyage be wholly broken up. Park, 79, Saloucci The right of search (admitted by v. Johnson. our treaty) gives a right to send the neutral into port for examination, and for that purpose the belligerent may put a force on board, and take out part of the original crew. The mere capture, ordering her into port, taking out part of the crew and putting other men on board, gave no right to abandon, and yet the abandonment is founded upon those facts only. The defendants were not obliged to accept the abandonment. It ought to have been accompanied by a cession. No subsequent event can make it valid. It was not accepted, and, therefore, *did not [*37 The information ought to be bind either party. such at the time of abandonment, that the | port, to afford an opportunity for a complete in- |