Collector

• Decision Date: 02 March 1821
• Citation: 6 Wheat. 194,5 L.Ed. 239,19 U.S. 194
• Parties: The COLLECTOR. Wilmot , Claimant
• Court: U.S. Supreme Court

19 U.S. 194

5 L.Ed. 239

6 Wheat. 194

The COLLECTOR.

Wilmot, Claimant.

March 2, 1821

APPEAL from the Circuit Court of Maryland.

The facts of this case were as follow:

In the year 1807, the schooner Collector and cargo were libelled in the District Court of the district of Maryland, as folfeited under the act of Congress prohibiting commercial intercourse with certain ports of St. Domingo.

John Wilmot, the present petitioner and libellant, and the house of Tagart & Caldwell, claimed the whole property.

Pending the proceedings in the District Court, the vessel and cargo were sold under an order to 'bring in the proceeds, subject to the future disposition thereof.' The money, notwithstanding this order, was never paid to the clerk, nor was it ever deposited by him in any Court, and the Court never afterwards made any order respecting it.

The property was condemned in the District, and Circuit Courts, which latter decree was reversed by the Supreme Court, in the Term of February, 1809 and the property libelled ordered to be restored. The mandate of the Supreme Court was filed below, the 11th of May following. The present libel and petition was filed in the District Court, the 8th of June. 1816, when a decree passed dismissing the same, which was afterwards affirmed by the Circuit Court, from whose sentence this appeal was taken.

The object of the present appeal was to obtain the benefit of the decree of the Supreme Court, that is, restitution of the property, according to the rights of the respective claimants; the appellant insisting on one half of the proceeds of vessel and cargo, as joint owner, and also upon a lien on the other half as ship's husband, for advances made beyond his proportion of the outfits of the voyage, as well as for expenses in defending the vessel and cargo against the information which had been filed against them and for this purpose prayed that the Marshal might be ordered to bring in the proceeds, according to the interlocutory decree, and that the same might be restored, pursuant to the decree of the Supreme Court, preserving to the parties their respective rights, liens, &c. concluding with a general prayer for relief.

From the petition of the appellant, the answer of the Marshal, and the proofs in the cause, it appeared, that the Marshal, although he sold the schooner and her cargo, did not, in fact, bring the money into Court. That for the moiety of the proceeds belonging to Tagart & Caldwell, an order was given by them in favour of Van Wyck & Dorsey, as early as March, 1807, in consequence of which order Van Wyck and Dorsey, who sold the property at auction, under the Marshal's directions, were permitted to retain the part belonging to Tagart & Caldwell, upon an understanding to keep it, if the vessel and cargo were acquitted, but to return it in case of a different issue. That the other moiety of the proceeds was paid on the 6th of April, 1809, which was previous to the filing of the mandate in the Court below, by the Marshal, to the present appellant, as appears by his receipt of that date, and which expresses the sum therein mentioned, to be for his one half of the net proceeds of the sale of the schooner Collector and cargo. The Marshal died, pending the proceedings, and they were revived against his executors.

February 23d.

Mr. Mitchell, for the appellant and claimant (1.) stated, that this was not a motion in the Court below, for a rule against the Marshal, to lay the foundation for an attachment, but a proceeding in the nature of an original libel, to give effect to the sentence of this Court, as another Court of Admiralty, in the former cause. That the District Court has jurisdiction to sustain such a libel or petition, founded upon the sentences of foreign Courts, and a fortiori of our own, appears by numerous authorities. Penhallow v. Doane, 3 Dall. 54, 97, 118; Jennings v. Carson, 2 Cranch 21; Livingston v. McKenzie, 3 T. R. 323, note; Smart v. Wolff, 3 Ibid. 329; 2 Bro. Civ. & Adm. Law 120; 7 Ves. jr. 593; Camden v. Home, 4 T. R. 385, 395. The mandate from this Court was properly filed in the District Court, because if the proceeds were to be considered as in Court at all, they were in that Court. They remained in that Court, notwithstanding the appeal, and it was, therefore, the proper tribunal to execute the decree of restitution. According to the English practice in proceedings in rem, the thing in controversy does not follow the suit into the Court of Appeals, but remains in that where the proceeding was originally commenced. 2 Bro. Civ. & Adm. Law 405. This is also the law of our own country. Jennings v. Carson, 2 Cranch 21. The ground of complaint here is, that the proceeds have not been brought into the registry, in pursuance of the interlocutory decree of the District Court, which is the only tribunal competent to vindicate its own decrees. The Circuit Court has no original jurisdiction in Admiralty and Maritime cases, and cannot redress a violation of the orders of the District Court. The object of the present application, is not merely to compel the payment of the proceeds into Court, but to obtain payment of money out of Court, which requires the solemnity of a petition analogous to the proceedings in Chancery in a similar case. Lord Eldon would never suffer money to be paid out of Court on motion, but put the party to his petition, stating his rights, which would thus appear on the records of the Court at any distance of time; and this practice was approved and adopted by Lord Erskine. 3 Ves. jr. 393.

(2.) The claimant insists upon his lien as part owner and ship's husband, on the voyage in which she was seised, for advances made by him, besides his absolute right in one moiety. Abb. on Ship. 114, Story's ed. It is an incontrovertible principle, that where property is taken out of the hands of a party, in invitum, and by legal process, the law will retain all his liens, and return it to him, still subject to them, as before. Wilson v. Kymer, 1 M. & S. 157, 163. It is true, that a person holding a dormant title, who stands by and witnesses a sale to another, is guilty of fraud; but if this lien be an equity raised by law, and not by the act of the parties, it requires no notice. The receipt of part out of the registry of a Court of Admiralty, is no bar or prejudice to the residue of the claim, but the party may afterwards file his libel, and have a monition for the further sum due. Bymer v. Atkyns, 1 H. Bl. 167. The Marshal has not done his duty under the interlocutory decree, directing him to bring the money into Court. We do not insist on an actual delivery to the...