17 F. Cas. 1340 | U.S. Circuit Court for the District of Pennsylvania | 1816
As there is no claim interposed for the coffee, the sentence of the district court, must of course be affirmed. As to the copper, molasses and sugar, claimed by Joseph E. Tatem, his ownership in the same, is made out by all the ordinary documentary proof, and there is not the slightest evidence in the cause, to induce a suspicion that these articles were the growth or manufacture of Great Britain or of any of her colonies or her possessions. The decree, therefore, as to these articles, must be reversed. The only question, which was seriously contested at the bar, related to the ninety-seven hogsheads of rum, claimed by Abbott, for himself and Nelson. Eor the United States it was insisted, that this article was manufactured in one of the British West India islands, and on the other it is asserted to be of Spanish origin. To establish the fact, on the one side, and on the other, a number of witnesses have been examined; all or most of whom, professed themselves to be well acquainted with the flavour and strength of rum made in the British islands. The number of witnesses was nearly equally divided, one-half pronouncing the rum to be of British origin, the other half declaring a different opinion; and the latter have relied for their support, not only upon the flavour, but upon the strength of the spirits, and upon the quality and make of the casks containing the same. In aid of the testimony given in favour of the claim, we have the depositions of sundry witnesses, taken at the Havanna, under letters roga-tory awarded by this court.
The decree of the district court was affirmed, as to the vessel, rum and coffee; and reversed as to the rest of the cargo.
After the decision was made, in the preceding case, the district attorney moved the court, to enter up judgment on the bond, which had been given by the claimant of the rum, and his security, upon the order of the district court, to deliver the same to the claimants. He referred to 2 [Bior. & D.] 65 [1 Stat. 85]; 3 [Bior. & D.] 221 [1 Stat. 695]; Acts 1789 and 1799, — which he contended, could only apply to the district court, so far as it required the lapse of twenty days, before the judgment is to be rendered. The Alligator [Case No. 248]; McLellan v. U. S. [Id. 8,895]; H. Black. 164.
On the other side, it was contended; that The Alligator [supra], was against the motion; and- that, upon the construction of the 89th section of the act of 1799, this court cannot give judgment on the bond, except in open court, and after twenty days, from the day when the sentence of condemnation passed. Besides, it was contended, that the sureties have a real defence to make in this case; the substance of which is, that after the rum was delivered to the claimant, he gave his sureties a lien on it, to induce them to join «him on the bond. That the rum was, afterwards taken in execution by the marshal, to satisfy a judgment obtained by the United States, for duties due to them, the amount whereof was satisfied by the sureties; which they claim, as a set off against their bond, the marshal having intimated an opinion, that such a set off would be allowed.
WASHINGTON, Circuit Justice. This de-fence, could, by no means, avail the sureties, even if the marshal had made the most express promise, that the money paid by them, should be credited against their bond; because that officer has no power to bind the United States, by any promise which he may make. If the fact be, that Nelson pledged tihe rum to his sureties, to secure them against their undertaking for him, and, if in consequence thereof, they might have contested the right of the United States to levy an execution on it; still, as they voluntarily permitted the execution to be levied on it, and paid the money, they cannot now complain, and off set the money so paid. As to the main question, the 89th section of the act of 1799, seems to consider the bond, which is directed to be given by the claimant, for the appraised value of the property, in nature of a stipulation, according to the ordinary course of the admiralty; or else, it would hardly have directed judgment to be entered on it, without further delay, after the expiration of the twenty days. But the delay was clearly intended to be confined to the district court, where without further delay, the judgment might be rendered. It is totally inapplicable to the circuit court; because, the whole design of the provision would be defeated, if that court were bound to wait twenty days, after the sentence of condemnation, before judgment could be entered on the bond. I entirely concur in the decision of the court, in the case of The Alligator [Case No. 248]; and shaE in conformity with it, direct judgment to be entered on the bond given in this case.
A commission, in the usual form, had been issued out of the district court to Havanna, but the authorities there prevented its execution. Any attempt to take testimony under it, was deemed an interference with the rights of the judicial tribunals there. Betters rogatory, according to the form and practice of the civil law, were issued, and the testimony was obtained. The following is a copy of the letters rogatory: United States. District of Pennsylvania. Set. The President of the United States, to Any Judge or Tribunal, Having Jurisdiction of Civil Causes at Havanna, Greeting: Whereas a certain suit is pending before us in which John D. Nelson. Henry Abbott and Joseph E. Tatem, are the claimants of the schooner Perseverance and cargo, and the United States of America are the defendants; and it has been suggested to us, that there are witnesses, residing within your jurisdiction, without whose testimony, justice cannot completely be done between the said parties. We therefore request you. that in furtherance of justice, you will, by the proper and usual process of your court, cause such witness or witnesses, as shall be named or pointed out to you by the said parties, or either of them, to appear before you, or some competent person, by you for that purpose to be annointed and au-thorised, at a precise time and place by you to be fixed, and there to answer on their oaths and affirmations, to the several interrogatories hereunto annexed; and that you will cause their depositions to be committed to writing, and returned to us under cover, duly closed and sealed up together with these presents. And we shall be ready and willing to do the same for you in a similar case when required. Witness, &c.