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Doane’s Administrators v. Penhallow

COMMON PLEAS, Philadelphia


September Term, 1787.

DOANE'S Adminiftrators vs. PENHALLOW et al.


HIS was a foreign attachment, in which, and in two others againft the fame Defendants for the fame caufe, a motion was made to quafh the writs. After argument, the president recapitulated the grounds of the motion, and delivered the opinion of the court as follows:

SHIPPEN,Preʃident.–On the hearing of this motion the Plaintiffs were called upon to fhew their caufe of action: They fhew that on the 17th of September 1783, a certain caufe, wherein Eliʃha Doane was claimant and appellant, againft the Brigantine Suʃannah and her cargo, and John Penhallow and others libellants and appellees, was tried in the Court of Appeals in cafes of capture eftablifhed by Congrefs in the city of Philadelphia. And that it was there finally adjudged and decreed by the faid Court of appeals, that the fentence or decree, given by the inferior and fuperior courts of Judicature in the State of New-Hampʃhire in the faid caufe, fhould be revoked and annulled, and the property fpecified in the faid claim fhould be reftored to the claimant. The Plaintiffs further fhew, by depofitions, that notwithftanding this final decree of reverfal, the Defendants, although requefted, had refufed, and ftill refufe, to reftore the property fpecified in the claim of the fiad Eliʃha Doane, the faid Defendants being owners and agents of the privateer M‘Clary which captured the faid Brigantine Suʃannah and her cargo, but he converted and difpofed of the fame to their own ufe. Upon this ground the action is brought to recover the value of


the faid Brig and cargo againft the Defendants. Two other actions are brought by Iʃaiah Doane and James Sheppard againft the fame Defendant for the fame caufe.

The motion to diffolve thefe attachments is founded on a rule and practice of this court, that in cafes of foreign attachments, they will examine into the Plaintiffs caufe of action, and if they find it not to be fuch as would intitle him to hold the Defendnats to fpecial bail, they will diffolve the attachment. This rule was founded on the mifchiefs which were found to arife from groundlefs attachments of the fhips and property of perfons not inhabitants or refident within this State, and its conformable to the fpirit of the attachments law.

The counfel for the Defendants, in order to fhew that there are not fufficient 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 Hampʃhire, on the 16th day of December 1777, agreeably to an Act on Affembly of that State; and alfo a fimilar condemnation in the Superior Court of Judicature of the State, on an appeal from that maritime Court, with an order for fale and diftribution accordingly. And they urge, that the fubfequent reverfal of thofe fentences, five or fix years afterwards, by the commiffioners of Congrefs appointed for hearing appeals in cafes of prize, is null and void, and infufficient to reveft the property in the claimants, Congrefs having had no power, before the Articles of Confederation, to receive appeals in cafe of prize. They alfo urge that a prior action has been brought by the prefent Plaintiffs againft the Defendants in the stat of Maʃʃachuʃets, for the fame caufe ; and that on the trial of that action, the judges there determined, that the decree of reverfal fhould not be given in evidence to the jury ; and that the Plaintiffs, in order to avoid a verdict againft them, had prayed and obtained leave to difcontinue that action. And that, therefore, the prefent action is vexatious, and the Defendants fhould not be held to bail.

A third reafon is alfo urged by the Defendant counfel, that this being originally a caufe of prize, it is exclufively of Admiralty jurifdiction ; and that no action will lie at common law, either for the original taking, or any of the confequences.

The court have heard, and deliberately confidered, the feveral arguments on thefe points, delivered by learned counfel on both fides.

The firft point involves in it the fovereign rights of the feparate States on the one hand, and the fupreme power of the United States in Congrefs affembled on the other; and is, indeed, a momentous queftion ; which, however, we fhall fhew in the decifion of the third point, to be unneceffary, and, perhaps, improper for us to decide upon.

On the fecond point, it is proper to declare, that we think ourfelves indifpenfably bound to give full faith and credit to the legal acts of our Sifter States ; and that the judgments given in their


courts will have their full effect here. But it is not very difcontinuance that will difable a Plaintiff to hold a Defendant to bail in a fecond action ; that will depend upon the circumftances of vexation attending the cafe ; which we, likewife, think it unneceffary to difcufs, in the prefent cafe, as we are clear and unanimous upon the laft point.

The whole learning upon this fubject is collected together and drawn to a point, in the famous cafe of Le Canx v. Eden, reported fupport of their opinion, it appear clearly ;– 1ft, that the queftion of prize, or no prize, is foley and exclufively of Admiralty jurfdiction, and not triable at common law. 2dly, That not only the original taking, but all the confequences, are foley appropriated to the Admiralty. 3dly, That although there may have been a definitive fentence of acquittal in the Admiralty, and that ʃentence conclufive on the queftion, yet for any matter happening confequential to the taking as prize, no fuit will lie at common law ; and that in all thofe confequential cafes, not withftanding the fentence of acquittal, the queftion of prize or no prize muft ftill arife, and the fentence is evidence of a thing which the common law cannot enquire into.

The application of thefe cafes to the caufe before us, is evident and obvious. The original taking of the Suʃanna and her cargo, was by a comiffioned privateer as prize; the carrying her into port, the procuring her condemnation in the maritime court of New-Hampʃhire, and the fale and diftribution by order of that court, were all confequences of this taking as prize. And, not withftanding the fentence of reverfal and acquittal, the queftion of prize or no prize will ftill occur.

The anfwer given by the Plaintiff's counfel to the cafes cited in Douglas, is, that in all thofe cafes the facts on which the actions were founded, happened previous to the decifion of the queftion of prize ; but that in thefe actions the facts which fupport them occurred aƒter the final fentence of acquittal, when the caufe was at reft, and it was not longer neceffary to examine the queftion of prize ; which ƒacts were, that after the final fentence of reverfal the Defendants were requefted and refufed to reftore the property agreeably to the fentence, and converted it to their own ufe, which is the ground of the action. The diftinction itfelf does not appear from the cafes, 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 neceffary confequences of the capture, that gives the exclufive jurifdiction to the Admiralty. In the cafe of Ridly v. Eggleʃield in 2 Lev. 25. there had been a previous condemnation of the fhip and goods as prize in Scotland, and two fubfequent fales on land, one in Scotland and the other in England; under which laft fale one of the parties claimed ; yet the court fay that this does not alter the Cafe, being matters confequential upon the original taking,


and dependant upon it. And, it is obfervable, that in this very cafe, as it is reported in 2 Sound. 259. the court fay that the validity of the fentence in the Admiralty court in Scotland was determinable by the law of Admiralty of England, and not by the common law. If, however, the diftinction made by the Plaintiff'‘s counfel was even admitted to be well founded, do the facts on which thefe actions muft be fupported, appear to be fubfequent to the final acquittal? It is true, there was a demand and refufal fubfequent to that decree, but a demand and refufal is only evidence of a converfion, and not the converfion itfelf. Are we to fhut our eyes againft the other evidence, and not fee when the converfion was made? It appears to have originated on the taking the veffel as prize on the high feas, and it was compleated on the fale and diftribution of the money in purfuance of the decree of the Superior Court of New-Hampʃhire, in confequence of the taking as prize:–All this long before the reverfal 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 enforced that decree ? Is there any cafe whatever which fhews that an action will lie at common law, to carry into execution the decree of a prize court of Admiralty? The jurifdictions of the two courts are intirely feparate, and they judge by different laws. It is true, that in fome cafes the courts of common law and the Inʃtance Court of Admiralty, have concurrent jurifdictions, as in fuits for feamen's wages ; but in no cafes whatever have the Prize Courts of Admiralty and the common law courts a concurrent jurifdiction.

I have faid before that the queftion of prize would ftill occur in this action ; the ultimate fact difputed, is, whether the veffel and cargo were prize or not : the evidence to fupport or contradict this fact arifes, on the fide, from the fentences of the martime courts of New-Hampʃhire; on the other from the fentence of the court of appeals of Congrefs. The validity of the latter fentence is difputed ; if we fay it is valid, we in effect fay fhe is no prize, if otherwife, we fay fhe was a prize. We have clearly not authority to fay either one or the other. By the cafe in Saunders, we cannot determine upon the validity of the fentence itfelf ; and if we could, yet it is, as juftice Butler obferves in Douglas, evidence of a thing which a common law court has no right to enquire into.

Upon the whole, therefore, as the queftion to be tried in this action, if not directly a queftion of prize, is yet a queftion arifing upon the immediate and neceffary confequences of the veffel's being taken as prize, which is foley and exclufively of Admiralty jurifdiction; and as it is an action to carry into execution the fentences of the court of appeals, which we have no authority to do (that being the proper judicature to carry into effect its own fentences) we think the prefent Action will not lie, and adjudge that the attachments be diffolved.