final decree of the courts of the United States, in a case of forfeiture regularly before them, is conclusive.1 If the seizing officer refuse to institute proceedings to determine whether there should be forfeiture, the district court may compel him to proceed to adjudication or abandon the seizure. If the seizure be adjudged wrongful and without probable cause, the owner may elect to seek his indemnity at common law in the State courts, or in the instance court of admiralty, but he can have no remedy at common law, in the courts of the United States. Decrees in admiralty should be secundum allegata, as well as secundum probata, and the libellant is not permitted to set forth one thing in his libel and prove another.2 The reason of the rule is obvious. It is, that the respondent may know the exact case he has to meet, and prepare himself accordingly. But it has been held, that if the allegations of the libellant in a cause of collision, imputing fault to the vessel proceeded against, are not sustained by the evidence, yet, that if the facts admitted by the respondent, or set forth in his answer, show that he was in fault, the libellant may recover.3 1 Gelston v. Hoyt, 3 Wheat. 246. 2 McKinlay v. Morrish, 21 How. 343; The Hoppet v. The United States, 7 Cranch, 389. See also, Jenks v. Lewis, Ware, 51; The Sch. Boston, 1 Sumner, 328, 331; Ward v. The Brig Fashion, 1 Newb. Adm. 41, 6 McLean, C. C. 195. 3 The Clement, 2 Curtis, C. C. 363. The libel alleged that both vessels were on the starboard tack, the pilot-boat (the libellant) close to the wind, and to the leeward of the brig (the respondent), when the brig suddenly changed her course, and kept off, and struck the pilot-boat, which was sunk, etc. The answer denied that the brig kept off and struck the pilot-boat, but stated that she kept her course until she luffed to lessen the force of the collision. The district court was of the opinion, that the allegations of the libel were not sustained by the evidence, but that it appeared that the case was one of two vessels sailing in converging courses on the same tack, the pilot-boat closehauled, and the brig with the wind two points free; that the rule of navigation required the brig to avoid the pilot-boat, unless there were special circumstances to render the rule inapplicable, and a decree was entered for the libellant. In the circuit court it was contended, that the decree should be reversed, because it was rested upon facts not alleged in the libel, but Mr. Justice Curtis sustained it for the reasons set forth in the text. Upon appeal to the supreme court, that court was equally divided, but as no opinion was given, we cannot state on what point the judges differed. Reference is made by the learned judge to that class of collision cases, where the decree is in conformity with the separate allegations of neither of the parties, namely, cases of mutual fault, where the libellant states that his vessel exercised due care, and imputes fault to the vessel proceeded against, while the claimant denies the fault imputed to him, and alleges that the vessel of the libellant is in fault, and the court finds part of the allegations in each pleading to be true, and divides the loss. But in the present case, no part of the libel The circuit court, as we have seen, does not remit the case to the district court, but executes its own decrees.1 The supreme court, however, remits the case to the circuit court, and by a mandate directs what disposition shall be made of the case. imputing fault, was sustained by the pleading, and we are unable to see the analogy between the two cases. Some stress, moreover, appears to be laid on the remark of Dr. Lushington in The Lady Anne, 1 Eng. L. & Eq. 670, 674, namely: "It is quite evident, in this case, that the point on which it has hinged has never been touched upon at all in the pleadings." It seems, however, to have escaped the notice of the learned judge, that the privy council for this very reason remitted the case to the admiralty court, with the directions that it should be further written to. In Dupont de Nemours v. Vance, 19 How. 162, an action was brought on a contract of affreightment against the vessel for non-delivery of goods. The answer set up a necessary jettison of that part of the cargo which was not delivered. The court found that this defence was sustained by the evidence, but allowed the libellant to recover the general average due from the vessel, although not claimed in the libel. Mr. Justice Curtis delivered the opinion of the court, which proceeded mainly on the grounds stated in the case of The Clement, supra. See also, Burton v. Salter, U. S. C. C., Mass., 21 Law Reporter, 148. 1 The Roarer, 1 Blatchf. C. C. 1. The decree in this case had been in favor of the libellants in the district court. Only one of the respondents appealed to the circuit court, and this appeal was afterwards dismissed as to some of the libellants, the sums severally awarded to them not being sufficient to justify the appeal. On the hearing, the decree of the district court was reversed, as between the appellant and those of the libellants who remained as appellees. The decree contained no provision as to so much of the decree below, as was not appealed from, and on motion being made to affirm it so far as it was not appealed from, Mr. Justice Nelson held, that the whole decree came up by the appeal, but as to that part not appealed from, it was not open to controversy, and the motion was denied. CHAPTER IX. FINAL PROCESS. THIS is provided for by the 21st admiralty rule of the supreme court, as follows: "In all cases where the decree is for the payment of money, the libellant may, at his election, have an attachment to compel the defendant to perform the decree, or a writ of execution in the nature of a capias and of a fieri facias, commanding the marshal, or his deputy, to levy the amount thereof of the goods and chattels of the defendant, and for want thereof, to arrest his body to answer the exigency of the execution. In all other cases, the decree may be enforced by an attachment to compel the defendant to perform the decree; and upon such attachment, the defendant may be arrested and committed to prison until he performs the decree, or is otherwise discharged by law, or by the order of the court." This rule seems more particularly applicable to suits in personam, for in suits in rem the process is a decree of sale, directing the marshal to sell the property and to pay the proceeds into court. The liabilities of sureties we have already considered.1 Executions obtained for the use of the United States in any of the courts of the United States, in one State, may run and be executed in any other State, or in any of the Territories of the United States, but shall be issued from and made returnable to the court where the judgment was obtained. And all writs of execution, upon any judgment or decree, obtained in any of the district or circuit courts of the United States, in any one State, which is or may be divided into two judicial districts may run and be executed in any part of such State, but shall be issued 1 See ante, p. 692–697. 2 Act of 1797, ch. 20, § 6, 1 U. S. Stats. at Large, 515. from, and be made returnable to the court where the judgment was obtained.1 Whether execution may issue against the land of the defendant, cannot be said to be settled on authority.2 1 Act of 1826, ch. 124, 4 U. S. Stats. at Large, 184. 2 See ante, p. 699, n. 2. CHAPTER X. OF APPEALS. SECTION I. OF APPEALS FROM THE DISTRICT TO THE CIRCUIT COURT. AN appeal lies from any final judgment or decree of the district court to the circuit court next to be holden in the district where such decree is rendered, when the matter in dispute, exclusive of costs, exceeds the sum or value of fifty dollars.1 The appeal must, it will be noticed, be made to the next circuit court, and it has been held that an appeal may properly be entered at the term of the circuit court which is begun next after the entry of the decree in the district court, although the term of the district court during which the decree was entered, had not ended when the term of the circuit court began.s This appeal must, unless there is a special rule of the court to the contrary, be taken in open court, and before the adjournment of the court without day. But a party is not bound to appeal 1 Act of 1803, ch. 40, § 2, 2 U. S. Stats. at Large, 244. The Supreme Court of the United States, in United States v. Nourse, 6 Pet. 470, 496, remarked that this act "made no alterations in the law of 1789, as it respects appeals to the circuit court, except in reducing the sum or matter in controversy from three hundred to fifty dollars." On the authority of this dictum Mr. Justice Curtis, in United States v. Certain Hogsheads of Molasses, 1 Curtis, C. C. 276, said a question respecting an appeal from the district to the circuit court must depend on the construction of the twenty-first section of the judiciary act of 1789. But if the two acts are only inconsistent to this extent, we do not see the necessity of relying on the former instead of on the latter act. 2 United States v. Brig Glamorgan, 2 Curtis, C. C. 236. 8 United States v. Certain Hogsheads of Molasses, 1 Curtis, C. C. 276. 4 Norton v. Rich, 3 Mason, 443. The forty-fifth Admiralty Rule provides that All |