United States v. Brig Malek Adhel. 2 H.

conclusive opinion upon this point. Looking to the authorities upon this subject, we shall find that the cargo is not generally deemed to be involved in the same confiscation as the ship, unless the owner thereof coöperates in or authorizes the unlawful act. There are exceptions founded in the policy of nations, and as it were the necessities of enforcing belligerent rights against fraudulent evasions, where a more strict rule is enforced and the cargo follows the fate of the ship. But these exceptions stand upon peculiar grounds, and will be found, upon a close examination, to be consistent with, and distinguishable from, the general principle above suggested. Many of the authorities upon this subject have been cited at the bar, and others will be found copiously collected in a note in the appendix to the 2d vol. of Wheat. pp. 37-40.

The present case seems to us fairly to fall within the general principle of exempting the cargo. The owners are confessedly innocent of all intentional or meditated wrong. They are free from any imputation of guilt, and every suspicion of connivance with the master in his hostile acts and wanton misconduct. Unless, then, there were some stubborn rule, which, upon clear grounds of public policy, required the penalty of confiscation to extend to the cargo, we should be unwilling to enforce it. We know of no such rule. On the contrary, the act of congress, pointing out, as it does, in this very case, a limitation of the penalty of confiscation to the vessel alone, satisfies our minds that the public policy of our government, in cases of this nature, is not intended to embrace the cargo. It is satisfied by attaching the penalty to the offending vessel, as all that public justice and a just regard to private rights require. For these reasons, we are of opinion that the decrees condemning the vessel and restoring the cargo, rendered in both the courts below, ought to be affirmed.

There remains, then, only the consideration of the costs, whether the courts below did right in making them exclusively a charge upon the proceeds of the condemned property. Costs in the admiralty are in the sound discretion of the court; and no appellate court should ordinarily interfere with that discretion, unless under peculiar circumstances. Here, no such circumstances occur. The matter of costs is not per se the proper subject of an appeal; but it can be taken notice of only incidentally as connected with the principal decree, when the correctness of the latter is directly before the court. In the

present case the cargo was acquitted, and there is no ground [* 238] to *impute any fault to it. If it had been owned by a third person, there would have been no reason for mulcting the owner in costs, under circumstances like the present, where it was impracticable to separate the cargo from the vessel by any

Brockett v. Brockett. 2 H.

delivery thereof, unless in a foreign port, and no peculiar cause of suspicion attached thereto. Its belonging to the same owner might justify its being brought in and subjected to judicial examination and inquiry, as a case where there was probable cause for the seizure and detention. But there it stopped. The innocence of the owner has been fully established; the vessel has been subjected to condemnation, and the fund is amply sufficient to indemnify the captors for all their costs and charges. We see no reason why the innocent cargo, under such circumstances, should be loaded with any cumulative burdens.

Upon the whole, we are all of opinion that the decree of the circuit court ought to be, and it is affirmed, without costs.

BROCKETT et al. v. BROCKETT.

2 H. 238.

An appeal bond, approved by the court is sufficient, though signed by only part of the appellants.

A petition to open a final decree, filed and taken into consideration by the court at the same
term in which the decree was made, suspends the decree, so that the ten days, allowed to
supersede it by an appeal, do not begin to run till the petition is disposed of.

APPEAL from the circuit court for the District of Columbia.
The grounds of the motion appear in the opinion of the court.

Jones and Brent, for the motion.

Bradley and Neale, contrà.

[* 240 ]

* STORY, J., delivered the opinion of the court. A motion has been made to dismiss this appeal upon several grounds. The first is, that although all the defendants have appealed from the decree of the court below, yet a part of them, only, have signed the appeal bond. This objection is not maintainable. It is not necessary that all the defendants should join in the appeal bond, although all must join in the appeal. It is sufficient if the appeal bond is approved by the court, as satisfactory and complete security, by whomsoever it may be executed.

The next ground is, that an appeal has been taken from the refusal of the court below to open the former decree, rendered for the appellant. It is plain that no appeal lies to this court in such a matter, as it rests merely in the sound discretion of the court below. And if this had been the sole appeal in the case, the appeal must have been dismissed. But an appeal has also been taken to the first de

2h 2

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cree (which was a final decree) rendered by the court. That [* 241 ] decree *was rendered on the 10th of May, 1843. During the same term, a petition was filed by the defendants on the 26th day of the same month, to have the final decree opened for certain purposes; and the court took cognizance of the petition and referred it to a master commissioner. His report was made on the 9th of June following, the same term still continuing; and the court then refused to open the final decree; and from this refusal as well as from the final decree, the defendants took an appeal, and gave bond with sufficient sureties, on the 15th day of the same month, and the appeal was then allowed by the court. Before that time the court had not fixed the penalty of the bond.

Now, the argument is, that as the original final decree was rendered more than one month before the appeal, it could not operate under the laws of the United States as a supersedeas, or to stay execution on the decree; because to have such an effect, the appeal should be made and the bond should be given within ten days after the final decree. But the short and conclusive answer to this objection is, that the final decree of the 10th of May was suspended by the subsequent action of the court; and it did not take effect until the 9th of June, and that the appeal was duly taken, and the appeal bond given within ten days from this last period.

Another and the last ground of exception is to the want of proper parties to the writ of error and citation. No writ of error lies in this case, but an appeal only; and the appeal having been made in open court, no citation was necessary.

Upon the whole, we are of opinion that the motion to dismiss the appeal ought to be overruled, and it is accordingly overruled.

14 H. 1.

WILLIAM A. DROMGOOLE, FREDERICK G. TURNBULL, and CHARLES A.
LACOSTE, Plaintiffs in Error, v. THE FARMERS AND MERCHANTS'
BANK OF MISSISSIPPI.

2 H. 241.

The statute of Mississippi, requiring payees and indorsees to be joined in a suit by the holder of a promissory note, will not enable an indorsee to sue the maker and indorser in a circuit court of the United States, if the maker and payce were citizens of the same State.

THE case is stated in the opinion of the court.

Walker, for the plaintiffs.

No counsel contrà.

Dromgoole v. Farmers and Merchants' Bank. 2 H.

STORY, J., delivered the opinion of the court.

This is a writ of error to the circuit court of the United States for the southern district of Mississippi.

[* 242 ]

* The original action was brought by the Bank of Mem- [243] phis, alleging the stockholders to be citizens of Tennessee, against the plaintiffs in error, (the original defendants,) alleging them to be citizens of Mississippi; and it was founded upon a promissory note made by Dromgoole and Turnbull, (two of the defendants,) dated at Princeton, Washington county, Mississippi, May 17, 1838, whereby on the 1st of January, 1839, they or either of them promised to pay to the order of Briggs, Lacoste, and Co., $2,899.50, for value received, payable and negotiable at the Planters' Bank of Mississippi, at Natchez. The declaration alleged title in the bank to the note by the indorsement of the payees, Lácoste using the name and description of Briggs, Lacoste, and Co. to them; and the suit was brought jointly against both the maker and the payee, in conformity to a statute of Mississippi, authorizing such a proceeding. The defendants pleaded that they are citizens of Mississippi, and that the persons composing the firm of Briggs, Lacoste, and Co., were and yet are citizens and residents of Mississippi, and were so at the time of the supposed transfer and delivery of the promissory note to the bank. To this plea there was a demurrer and joinder, on which the circuit court gave judgment for the bank; and the present writ of error is brought to revise that judgment.

The 11th section of the Judiciary Act of 1789,' c. 20, provides: "Nor shall any district or circuit court have cognizance of any suit to recover the contents of any promissory note, or alter those in action in favor of an assignee, unless the suit might have been prosecuted in such court to recover the said contents, if no assignment had been made, except in cases of foreign bills of exchange." Now the present case falls directly within the prohibition of this clause. The suit is brought by the plaintiffs to recover the contents of a promissory note of which they are the indorsees of the payee, and the payee and the makers are all citizens of Mississippi. The ground on which the original judgment was given, probably, was that the statute of Mississippi required all the parties to the note to be joined in the suit; and as all the plaintiffs were citizens of Tennessee, and all the defendants citizens of Mississippi, it was a case falling directly within the general provisions of the 11th section of the Judiciary Act of 1789, c. 20, which gives jurisdiction to the circuit court in cases where "the suit is between a citizen of the

Griffin v. Thompson. 2 H.

*

State where the suit is brought, and a citizen of another State." But it has been already decided by this court, that the statute [* 244] of Mississippi is of no force or effect in the courts of the United States, and that independently of that statute no such joint action is by law maintainable. This was decided in Keary v. The Farmers and Merchants' Bank of Memphis, 16 Pet. 89. The other point, that the case falls within the prohibition of the 11th section of the Judiciary Act of 1789, c. 20, was as fully recognized by this court in Gibson and Martin v. Chew, 16 Pet. 315.

There is nothing then in the present case which is open for argument. The judgment of the circuit court of the southern district of Mississippi is therefore reversed, and the cause remanded to that court, with directions to enter a judgment for the defendants.

6 H. 31.

THOMAS GRIFFIN and HUGH ERVIN V. ROBERT THOMPSON.

2 H. 244.

The marshal cannot receive depreciated currency in satisfaction of an execution; and if he returns that he has done so, the return may be quashed on motion, and an alias execution issued upon the judgment.

CERTIFICATE of division of opinion by the judges of the circuit court of the United States for the southern district of Missouri.

The marshal, by his deputy, had returned on an execution that he had received in satisfaction thereof certain bank-notes, which were, in point of fact, not of their nominal value in gold and silver. Upon motion of the judgment creditors, this return was quashed and an alias execution ordered and issued. The judgment debtor moved to have satisfaction entered on the alias execution, and also that the same should be quashed. Upon the allowance of these motions, the judges divided in opinion.

Henderson, for the judgment debtor.

Harrison and Holt, contrà.

[* 256 ]

* DANIEL, J., delivered the opinion of the court. This court is unable to perceive upon what principle of law either of the objects sought by the motion of the plaintiffs in the circuit court could have been accorded to them. It cannot be questioned that the defendant in that motion was entitled to the full benefit and operation of his execution, and these were to cause to be made for him of the goods and chattels, lands and tenements, of his debtor, the sum of $1,740.02, of lawful money of the United States.