1 Brock. 380 | U.S. Circuit Court for the District of Virginia | 1819
This is a motion for an execution against Warren Ashley, who signed a bond with Charles Grice, the owner of the Little Charles, then libel-led for a breach of the embargo laws, on receiving which the vessel was restored to the owner. In the district court, the vessel was acquitted; that sentence was, on appeal, reversed, and the vessel was condemned by the sentence of this court. On the return of the monition, which has been issued to the party who signed the bond, Mr. Ashley contends that the proceedings in the ease have been so singular, informal, and defective, that no execution can be issued on the bond against him. The objections are:
1.That the order for release, is a nullity, and all the consequent proceedings void, because the order was made by the judge, at his chambers, and not in court The judicial act appoints certain stated terms of the district court, and gives the judge power to hold special courts at his discretion, either at the place appointed by law, “or at such other place in the district, as the nature of the business, and his discretion shall direct." No power, it is contended, is given to the judge, except when sitting as a court, and, therefore, the form of declaring himself to be a court, is indispensable to the validity of his acts.
This objection seems rather technical than substantial. By law, the district judge alone composes the court. He is a court wherever, and whenever he pleases. No notice to parties is required; no previous order is necessary. The various ex parte orders which admiralty proceedings require, renders this informal mode of acting essential to justice and expedition. The judge will take, care that neither party be injured by the orders which he makes ex parte, and where they are of course, it is convenient that they should be made without the formality of summoning the parties to. attend. It does not seem to be a violent construction of such an act, to consider the judge as constituting a court whenever he proceeds on judicial business. Such seems to have been the practice in this, and in other districts of the United States. Had the judge prefixed to his order such words as these, “At a special court, held at -, on this - day of -, it is ordered, &c.,” the proceedings would have been regular, for the law does not, in terms at least, require that the order for a special court should be made in court, or made any given time previous to its session. To every purpose of justice, the order of the judge, made in his character as a judge, is made by him as a court, whether he declares himself, in words, to be a court, or not. This order is, in its nature, judicial. It is such an order as may be made ex parte; it is signed by the judge, in his official character, and is directed to the officer of the court. Under such circumstances, I cannot overturn a practice which is convenient, which is not liable to abuse, on a mere technical objection.
2. The second objection is, that the condition of the bond has not been broken. It is to perform the decree of the court, which must mean the district court; and by that decree, the libel was dismissed.
This objection, too, must search for other support than is furnished by the merits of the cause. The bond was intended to be substituted for the vessel, and to be acied upon as the vessel would have been acted upon, had it remained in the power of the court. I think myself justified, then, by authority and by reason, in construing the general term, “the court,” which is used in the condition, as meaning the court which shall ultimately decide the cause.
3. An objection which I felt most difficulty in removing, was, that the bond was executed to the marshal, and that the valuation ought to have been made by commissioners appointed by the court.
I believe there is no special act of congress prescribing the form of the bond, or the mode of valuing the property. The act for regulating process in the courts of the United States, directs, that in causes in equity, and in those of admiralty and maritime jurisdiction, the proceedings shall be “according- to the principles, rules and usages, which belong to courts of equity and courts of admiralty, respectively, as contra-distinguished from courts of common law.” The courts of the United States have never doubted their right to proceed under their general powers, as courts of admiralty, where they were not restrained from the use of those powers by statute. It may be, that the proceedings in this case have not conformed strictly to the usages of admiralty. But I do not think the defendant can be permitted to avail himself of an irregularity to which he is himself a party, and which could only affect the libellants. The bond is executed voluntarily to the marshal, for the purpose of being substituted for the vessel, and with full knowledge of the valuation. The libellants might have objected, that the valuation was informal and insufficient. But they have not objected. The stipulation, as it is. was filed in court, and has remained there in place of the vessel. I
The execution is to be awarded.
