This was a foreign attachment, in which, and in two others
against the same Defendants for the same cause, a motion was made
to quash the writs. After argument, the President recapitulated the
grounds of the motion, and delivered the opinion of the court as
follows:
Shippen, President. On the hearing of this motion the Plaintiffs
were called upon to shew their cause of action: They shew that on
the 17th of September 1783, a certain cause, wherein Elisha Doane
was claimant and appellant, against the Brigantine Susannah and her
cargo, and John Penhallow and others libellants and appellees, was
tried in the Court of Appeals in cases of capture established by
Congress in the city of Philadelphia. And that it was there finally
adjudged and decreed by the said Court of appeals, that the
sentence or decree, given by the inferior and superior courts of
Judicature in the State of New Hampshire in the said cause, should
be revoked and annulled, and the property specified in the said
claim should be restored to the claimant. The Plaintiffs further
shew, by depositions, that notwithstanding this final decree of
reversal, the Defendants, although requested, had refused, and
still refuse, to restore the property specified in the claim of the
said Elisha Doane, the said Defendants being owners and agents of
the privateer M'Clary which captured the said Brigantine Susannah
and her cargo, but had converted and disposed of the same to their
own use. Upon this ground the action is brought to recover the
value of
Page 1 U.S.
218, 219
the said Brig and cargo against the Defendants. Two other
actions are brought by Isaiah Doane and James Sheppard against the
same Defendants for the same cause. The motion to dissolve these
attachments is founded on a rule and practice of this court, that
in cases of foreign attachments, they will examine into the
Plaintiffs cause of action, and if they find it not to be such as
would intitle him to hold the Defendants to special bail, they will
dissolve the attachment. This rule was founded on the mischiefs
which were found to arise from groundless attachments of the ships
and property of persons not inhabitants or resident within this
State, and is conformable to the spirit of the attachment law. The
counsel for the Defendants, in order to shew that there are not
sufficient grounds to hold the Defendants to bail, have produced
evidence of an original condemnation of the Brig and her cargo as
lawful prize in the maritime court of New Hampshire, on the 16th
day of December 1777, agreeably to an Act of Assembly of that
State; and also a similar condemnation in the Superior Court of
Judicature of that State, on an appeal from that maritime Court,
with an order for sale and distribution of the property among the
captors, and an actual sale and distribution accordingly. And they
urge, that the subsequent reversal of those sentences, five or six
years afterwards, by the commissioners of Congress appointed for
hearing appeals in cases of prize, is null and void, and
insufficient to revest the property in the claimants, Congress
having had no power, before the Articles of Confederation, to
receive appeals in case of prize. They also urge that a prior
action has been brought by the present Plaintiffs against the
Defendants in the State of Massachusets, for the same cause; and
that on the trial of that action, the judges there determined, that
the decree of reversal should not be given in evidence to the jury;
and that the Plaintiffs, in order to avoid a verdict against them,
had prayed and obtained leave to discontinue that action. And that,
therefore, the present action is vexatious, and the Defendants
should not be held to bail. A third reason is also urged by the
Defendants counsel, that this being originally a cause of prize, it
is exclusively of Admiralty jurisdiction; and that no action will
lie at common law, either for the original taking, or any of the
consequences. The court have heard, and deliberately considered,
the several arguments on these points, delivered by learned counsel
on both sides. The first point involves in it the sovereign rights
of the separate States on the one hand, and the supreme power of
the United States in Congress assembled on the other; and is,
indeed, a momentous question; which, however, we shall shew in the
decision of the third point, to be unnecessary, and, perhaps,
improper for us to decide upon. On the second point, it is proper
to declare, that we think ourselves indispensably bound to give
full faith and credit to the legal acts of our Sister States; and
that the judgements given in their
Page 1 U.S.
218, 220
courts will have their full effect here. But it is not every
discontinuance that will disable a Plaintiff to hold a Defendant to
bail in a second action; that will depend upon the circumstances of
vexation attending the case; which we, likewise, think it
unnecessary to discuss, in the present case, as we are clear and
unanimous upon the last point.
The whole learning upon this subject is collected together and
drawn to a point, in the famous case of Le Caux v. Eden, reported
in Douglas 572. By this case, and the cases cited by the judges in
support of their opinion, it appear clearly; 1st, that the question
of prize, or no prize, is solely and exclusively of Admiralty
jurisdiction, and not triable at common law. 2ndly, That not only
the original taking, but all the consequences, are solely
appropriated to the Admiralty 3rdly, That, although there may have
been a definitive sentence of acquittal in the Admiralty, and that
sentence conclusive on the question, yet for any matter happening
consequential to the taking as prize, no suit will lie at common
law; and that in all those consequential cases, notwithstanding the
sentence of acquittal, the question of prize or no prize must still
arise, and the sentence is evidence of a thing which the common law
cannot enquire into.
The application of these cases to the cause before us, is
evident and obvious. The original taking of the susanna and her
cargo, was by a commissioned privateer as prize; the carrying her
into port, the procuring her condemnation in the maritime court of
New Hampshire, and the sale and distribution by order of that
court, were all consequences of this taking as prize. And,
notwithstanding the sentence of reversal and acquittal, the
question of prize or no prize will still occur.
The answer given by the Plaintiff's counsel to the cases cited
in Douglas, is, that in all those cases the facts on which the
actions were founded, happened previous to the decision of the
question of prize; but that in these actions the facts which
support them occurred after the final sentence of acquittal, when
the cause was at rest, and it was no longer necessary to examine
the question of prize; which facts were, that after the final
sentence of reversal the Defendants were requested and refused to
restore the property agreeably to the sentence, and converted it to
their own use, which is the ground of the action. The distinction
itself does not appear from the cases, to be well founded, as it is
not the time when the facts happened, but the connection they have
with the original capture, and their being the necessary
consequences of the capture, that gives the exclusive jurisdiction
to the Admiralty. In the case of Ridly v. Egglesfeld in 2 Lev. 25,
there had been a previous condemnation of the ship and goods as
prize in Scotland, and two subsequent sales on land, one in
Scotland and the other in England; under which last sale one of the
parties claimed; yet the court say that this does not alter the
Case, being matters consequential upon the original taking,
Page 1 U.S.
218, 221
and dependant upon it. And, it is observable, that in this very
case, as it is reported in 2 Saund. 259, the court say that the
validity of the sentence in the Admiralty court in Scotland was
determinable by the law of the Admiralty of England, and not by the
common law. If, however, the distinction made by the Plaintiff's
counsel was even admitted to be well founded, do the facts on which
these actions must be supported, appear to be subsequent to the
final acquittal? It is true, there was a demand and refusal
subsequent to that decree, but a demand and refusal is only
evidence of a conversion, and not the conversion itself. Are we to
shut our eyes against the other evidence, and not see when the
conversion was made? It appears to have originated on the taking
the vessel as prize on the high seas, and it was compleated on the
sale and distribution of the money in pursuance of the decree of
the Superior Court of New Hampshire, in consequence of the taking
as prize: All this long before the reversal of the decree.
What is this, then, but an action to enforce by our authority,
the decree of the Court of Appeals? Are we authorized to enforce
that decree? Is there any case whatever which shews that an action
will lie at common law, to carry into execution the decree of a
prize court of Admiralty? The jurisdictions of the two courts are
intirely separate, and they judge by different laws. It is true,
that in some cases the courts of common law and the Instance Court
of Admiralty, have concurrent jurisdictions, as in suits for
seamen's wages; but in no case whatever have the Prize Courts of
Admiralty and the common law courts a concurrent jurisdiction.
I have said before that the question of prize would still occur
in this action; the ultimate fact disputed, is, whether the vessel
and cargo were prize or not: the evidence to support or contradict
this fact arises, on one side, from the sentences of the maritime
courts of New Hampshire; on the other from the sentence of the
court of appeals of Congress. The validity of the latter sentence
is disputed; if we say it is valid, we in effect say she is no
prize, if otherwise, we say she was a prize. We have clearly no
authority to say either one or the other. By the case in Saunders,
we cannot determine upon the validity of the sentence itself; and
if we could, yet it is, as justice Buller observes in Douglas,
evidence of a thing which a common law court has no right to
enquire into.
Upon the whole, therefore, as the question to be tried in this
action, if not directly a question of prize, is yet a question
arising upon the immediate and necessary consequences of the
vessel's being taken as prize, which is solely and exclusively of
Admiralty jurisdiction; and as it is an action to carry into
execution the sentence of the court of appeals, which we have no
authority to do (that being the proper judicature to carry into
effect its own sentences) we think the present Action will not lie,
and adjudge that the attachments be dissolved.
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