29 F. Cas. 1052 | U.S. Circuit Court for the District of Southern New York | 1857
I am satisfied that the order made by me was improvidently granted, and that I had no power to make it; and, as the question is presented on a motion made by a party who claims to have an interest in the vessel, and who was not a party to the libel or the proceedings in the cause, I shall direct that the order entered upon the filing of the consent of the proctors for the respective parties be vacated, and that the rights of all persons concerned be left to stand upon the written stipulation entered into by the proctors. The purchaser at the sale of the vessel has appeared and opposed this motion; but, as he had full notice of the proceedings, and of the claim that the order of sale was invalid, and would be contested, I perceive no equity entitling him to any particular favor. Indeed, were it otherwise, it would not change my decision, as I vacate the order on the ground that I had no power or jurisdiction to make it.
Since the granting of the order, I have had occasion to look deliberately into the question as to the power of the court to order back into the custody of the marshal a vessel which has been fairly discharged from arrest on a stipulation, and am satisfied that the court possesses no such power. The reasons for this conclusion were given in the case of The Union [Case No. 14,346], decided at this term. Such I understand, also, to be the rule of the English admiralty. The Kalamazoo, 9 Eng. Law & Eg. 557; The Hope, 1 W. Rob. Adm. 154; The Volant, Id. 383; 15 Law Rep. 563.
Order vacated.
