and if the marshal can obtain possession of the vessel with his consent, or with the consent of his deputy, the right of the sheriff is at an end. At common law, if the property of one person is attached as the property of another, the former may assert his right of property by a writ of replevin, and it has been held that he may do the same in admiralty by a petitory suit."

marshal, instituted a petitory suit in the district court, and the vessel was ordered to be delivered to him. On appeal to the circuit court, Mr. Justice Grier, though he was clearly of the opinion that the petitioner had a good title, yet held that the replevin suit pending in the State court was a good bar to further proceedings in admiralty. Taylor v. The Royal Saxon, 1 Wallace, Jr. 311. The suit in the State court was then brought before the Supreme Court of the United States by a writ of error, and the decision of the State court was held to be correct. 20 How. 583, Taney, C. J., Wayne, J., Grier, J., and Clifford, J., dissenting. We would call the attention of the profession to the opinion of the learned Chief Justice in this case, as one which has been seldom equalled in a clear and forcible exposition of the rights and powers of the courts of admiralty in this country. After remarking that the power which created the court could give the right of trial by jury, if it saw fit, the learned judge continued: "I can therefore see no ground for jealousy or enmity to the admiralty jurisdiction. It has in it no one quality inconsistent with or unfavorable to free institutions. The simplicity and celerity of its proceedings, make a jurisdiction of that kind a necessity in every just and enlightened commercial nation. The delays unavoidably incident to a court of common law, from its rules and modes of proceedings, are equivalent to a denial of justice, where the rights of seamen or maritime contracts or torts are concerned, and seafaring men the witnesses to prove them; and the public confidence is conclusively proved by the well-known fact, that in the great majority of cases, where there is a choice of jurisdictions, the party seeks his remedy in the court of admiralty in preference to a court of common law of the State, however eminent and distinguished the State tribunals may be." In Clark v. Sch. Gazelle, U. S. D. C., Mass., March, 1858, the court refused to issue a warrant of arrest while the vessel was in the custody of the State court, but, as soon as she was sold by the sheriff, granted the requisite permission, holding that the sale did not divest nor impair the lien of the seamen for wages.

1 The Julia Ann, U. S. D. C., Mass., 1858, 21 Law Reporter, 21. The vessel, in this case, was in the custody of the sheriff, and in possession of a keeper appointed by the sheriff, and the party in possession had written authority from the sheriff to hold the vessel. This fact was not disclosed to the marshal, but the keeper consented to hold the vessel under the marshal, and did so until the sale, and received his fees therefor. When the sheriff was informed that the keeper was holding under the marshal, he did not oust him, but said he knew nothing about the marshal, and told the keeper to keep on, and no action was taken in the court till after the sale. Under these circumstances the court held that the purchaser at the sale by the marshal was entitled to possession.

2 The Taranto, U. S. D. C., Mass., 12 Law Reporter, 5. While acquiescing in the justice of this decision, we do not see how the marshal could take the vessel under the decision in Taylor v. Carryl, supra. And this case is a good example of the power of a person to effectually deprive the court of admiralty of its entire jurisdiction, under that decision. In the case of The Taranto, a company of Californians were about to

In England, a ship was seized by a sheriff upon process from the Court of King's Bench; afterwards, admiralty process, issued in a suit for wages, under which she was sold, and the claim of the sheriff to the surplus proceeds was allowed as against the former owner of the ship, on the ground that admiralty would take a judgment on record as a debt, although it would not inquire into the claims of general creditors.1

The legislature of a State can neither amend the judgment nor determine the jurisdiction of any of the courts of the United States.2

The judge of the district court may hold court, at any place within the district that "the nature of the business and his discretion shall direct; "3 and orders, generally, may be at chambers as well as in open court. It is said that the various ex parte orders which admiralty proceedings sometimes require quite suddenly, make this rule necessary. It has, however, been seriously doubted by Mr. Justice Story whether the district court can receive stipulations in vacation and deliver property thereon, before the return term of the process. We believe however, that this

sail for California in a vessel which they had purchased, but which stood in the name of their agent, who refused to give up the vessel. The vessel was also under attachment in the State court, in a suit against the agent for supplies furnished. The court held that as the property did not belong to the agent the attachment was not valid, and decreed possession of the vessel to the libellants. As to the stores not paid for, it was decreed that the libellants could not be entitled to them. The opinion in this case was rendered in less than two weeks after the libel was filed, whereas if the owners had resorted to a writ of replevin, supposing they had been able to give bonds to double the value of the vessel, the case could not have been decided under a year, and probably would have been in court much longer, yet, if we understand the effect of the decision in Taylor v. Carryl, the common-law remedy was the only one left to the owners, although as their whole property was invested in the vessel, it might have been impossible for them to have availed themselves of it.

1 The Flora, 1 Hagg. Adm. 298. The creditor in this case, who seized the vessel under the authority of the King's Bench, consented to the sale, and claimed merely to come in for the surplus after paying the sum due the seamen. But," says Taney,

66

C. J., in Taylor v. Carryl, 20 How. 583, 603, "if the marshal could not lawfully arrest while she was in the possession of the sheriff, he could not lawfully sell under that arrest, nor while the sheriff still held possession, and no consent of parties would make it a valid marshal's sale, and give a good title to the purchaser, if the sale was without authority of law."

2 United States v. Peters, 5 Cranch, 115.

3 Act of 1789, ch. 20, § 3, 1 U. S. Stats. at Large, 73.

4 United States v. Sch. Little Charles, 1 Brock. C. C. 580.

6 In Ex parte Robbins, 2 Gallis. 320, 322, Story, J., said: "Admitting that the

is done in practice, but we think not against the will or without the consent of the libellant.

SECTION IV.

OF APPEALS GENERALLY.

By an appeal, the judgment and decree of the court are suspended; and the whole cause both as to its law and its fact, is to be heard de novo in the appellate court.1 Nor is the cause a res adjudicata, until the final sentence of the appellate court. Any statute, therefore, which is passed before such final decree, is to be considered, and if the case before the court arose on a statute which is repealed2 or expires by its own limitation 3 before the

district court can deliver property on bail in vacation, and before the return term of the process (which admits of very serious doubts), no delivery on bail could properly be made without notice to the district-attorney (the United States being interested in the suit), and a hearing before the district judge." See also Brig Alligator, 1 Gallis. 145, 148, cited supra, p. 521, n. 3.

1 Anonymous, 1 Gallis. 22. It was held in this case that the circuit court had authority to allow amendments in revenue cases or proceedings in rem brought by appeal from the district court. In Gloucester Ins. Co. v. Younger, 2 Curtis, C. C. 322, 335, the case came before the circuit court under an agreement that the decision of the district judge should be final on all questions of fact, and that no evidence should be introduced in the appellate court except the opinion of the district judge, or a statement of facts made thereon; but that all questions of law from facts proved, were to be open on appeal. Mr. Justice Curtis disapproved of this course and offered to discharge the agreement, but as neither party desired it, he determined the case on the agreement, although he stated that he had encountered much embarrassment in doing so, and should execute a similar agreement afterwards with much reluctance, if at all.

2 An interesting case which finally turned on this point occurred in Louisiana. The Act of Congress of March 2d, 1807, 2 U. S. Stats. at Large, 428, passed for the prevention of the slave-trade, directed that any vessel hovering about and intending to land negroes on the coast of the United States, should be forfeited, and the negroes delivered to any persons appointed by the several States for the purpose of disposing of them. The Josefa Segunda was libelled under this act, and the cargo of negroes delivered to the sheriff of Louisiana, in accordance with a statute of that State, which was passed in pursuance of the act of congress, and which also directed that one half the proceeds of the sale of such negroes should be delivered to the treasurer of the

3 In Yeaton v. United States, 5 Cranch, 281, Marshall, C. J., said: "In admiralty cases, an appeal suspends the sentence altogether, and it is not res adjudicata until the

final decree is passed, the case is at an end. But if the property does not follow the case, the court in whose custody it

Charity Hospital at New Orleans, and one half to the commanding officer of the capturing vessel, meaning the public vessel contemplated by the act of congress. In 1820, the final decree of condemnation was pronounced in the supreme court. 5 Wheat. 338. In the mean time, the sheriff, by the consent of all parties, had sold the negroes and lodged the proceeds in the United States Bank, subject to the order of the court below. To the proceeds of this sale, there were seven claimants, none of whom fell within the description, in the statute of Louisiana, of the individuals who should be entitled to them. Their claims were, therefore, rejected by the supreme court, in 1825. 10 Wheat. 312. As to the proceeds of the sale of the vessel, the court said, 10 Wheat. 331, 332, "Upon the best consideration which we have been able to give the case, we are of opinion that it is a casus omissus, or rather that all the beneficial interest vests in the United States. . . . . The remarks which have already been made, dispose of the case as far as respects the proceeds of the vessel; and we think they are decisive as to the claim to the proceeds of the sale of the negroes. The case as to this matter, is also a casus omissus in the act of Louisiana."

....

In 1830, the case came up again, nom. United States v. Preston, 3 Pet. 57, on "appeal from so much of the decree of the court below as awarded to the State of Louisiana, the proceeds of the sales of certain slaves." The court said, "that as the final condemnation in this court took place March 13, 1820, and as previous to that time was passed the act of March 3, 1819 (3 U. S. Stats. at Large, 450 and 532), by which a new arrangement is made as to the disposal of persons of color, seized and brought in under any of the acts prohibiting the traffic in slaves, the power to deliver them to the order of the States was taken away before the final decree of this court." Then, according to the principle of Yeaton v. United States, 5 Cranch, 281, if they had been specifically before the court at the date of that decree, they must have been delivered, not to the State according to the act of 1807, but to the United States, according to the act of 1819. But they had already been sold, and the court said, "We would not be understood to intimate that the United States are entitled, to this money, for they had no power to sell. Nor do we feel bound to remove the difficulties which grow out of this state of things." This was indeed a curious case. The slaves were sold by consent of the parties, before final condemnation of the vessel. The disposal of them was in violation of the law regulating such matters at the time of the decree. The sheriff, therefore, acted wrongfully, but was not liable to anybody, as he had only converted forfeited property into another form. But under the laws relating to the slave-trade, there was no one who could claim this money; neither the State of Louis

final sentence of the appellate court be pronounced. The cause in the appellate court is to be heard de novo, as if no sentence had been passed. . . . . In prize causes, the principle has never been disputed, and in the instance court, it is stated in 2 Browne's Civil Law, that in cases of appeal it is lawful to allege what has not before been alleged, and to prove what has not before been proved. The court is, therefore, of opinion that this cause is to be considered as if no sentence had been pronounced; and if no sentence had been pronounced, it has long been settled on general principles, that after the expiration or repeal of a law no penalty can be enforced nor punishment inflicted for violations of the law committed while it was in force, unless some special provision be made for that purpose by statute." See also, United States v. Ship Helen, 6 Cranch, 203; Schooner Rachel v. United States, 6 Cranch, 329.

remains may always make any proper and necessary order respecting it.1

Questions have arisen as to the effect of joinder of parties on the right of appeal. The statute defines the amount which gives the right; and in suits for torts, unless an ad damnum be claimed equal to the amount which gives the right of appeal, that right does not exist. But in admiralty, parties are permitted to join, for convenience and economy, whose rights and interests are so distinct and independent that they could not be joined at common law. And it seems to be now settled, that no party can appeal, unless he has himself, and separately from others, a claim, or unless the opposite party has recovered against him, separately, an amount, which, by itself, is equal to that which by the terms of the statute, gives the right of appeal. Thus, all the crew of a ship may join in libel for wages; but only he whose claim exceeds fifty dollars, separately considered, can appeal to the circuit court; and only he whose claim exceeds two thousand dollars can appeal thence to the supreme court.2 And where several libels were filed by shippers of cargo to recover for damages done to their goods, and the actions were ordered to be consolidated by the court, it was held, that the interest of the parties was distinct, and no appeal would lie, except where the separate amount demanded by each libellant exceeded two thousand dollars. When, however, many libellants join in one libel, and their interests are joint, although not coequal, then an appeal lies, if the total amount exceed the sum required by the statute, although the amounts which would belong to each one, is less. In respect to salvage claims, it has been decided,

iana nor the claimants, for so the court decided; not the United States, for there is no law by which the United States receives the price of slaves; not the slaves themselves, of course. The $65,000 deposited by the sheriff of the parish of New Orleans in the United States Bank lies there yet (or its remains lie there), so far as we know or can infer from the law.

1 The Grotius, 1 Gallis. 503, per Story, J.; The Collector, 6 Wheat. 194.

2 Oliver v. Alexander, 6 Pet. 143.

8 Rich v. Lambert, 12 How. 347.

4 Shields v. Thomas, 17 How. 3. In this case, the representatives of a person deceased claimed, under a bill in equity, moneys which Shields, the administrator, had converted to his own use. The complainants filed a bill in the Chancery Court of Kentucky, and obtained a decree which exceeded $2,000, the portion due each complainant being decreed to him separately, and being less than $2,000. A motion was made to dismiss