March 7.
delivered the opinion of the court io the following effect:
The majority of the court is clearly of Opinion, •that in admiralty cases an appeal suspends the tence altogether; and that it is not res adjudicuiá until the 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. ‘ This has been the uniform practice not only • in cases of appeal from the district to the circuit courts of the United States, but in this court also.
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 -kaoful to allege zvhat 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 been long 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. †
*284 The following sentence was then pronounced by the court:
This cause came on to be heard on the transcript of the record, and was argued by counsel; on consideration whereof the courtis of opinion, that an appeal from the sentence of a court of admiralty brings the whole case before the appellate? court unaffected by the sentence of condemnation from which the appeal is made, and that a sentence of condemnation cannot be pronounced on account of a forfeiture which accrued under a law not in force at the time of pronouncing such sentence, unless, by some statutory provision, the right to enforce such forfeiture be preserved.
The court is, therefore, of opinion, that the sentence pronounced in this cause by the circuit court of the district of Maryland, affirming the sentence of the judge of the district court in this cause, be reversed, and annulled; and the court, proceeding to pronounce the proper sentence, doth direct that th libel be dismissed, and the property libelled be restored to the' claimants, they paying the duties thereon if the same have not been already paid.
And, on the motion of the attorney-general, it is ordered to be certified that in the opinion of this court, there was probable cause of seizure.
Notes
Clerke’s Praxis, Hi, 54. “ Nam in appellatione a sententia definitiva licet non allegata allegare et non probala probare.”
The cases ot IVilmnt et ul claimants of the schooner Collector, ami ijcwis, claimant of the schooner Gottenburgh v. United States, were reversed opon The same principle.