an innocent merchant ship, without any other | ing the offense or wrong, or insuring an inobject than to gratify his lawless appetite for demnity to the injured party. The doctrine mischief, it is just as much a piratical aggres- also is familiarly applied to cases of smuggling sion, in the sense of the law of nations, and of and other misconduct under our revenue laws; the act of Congress, as if he did it solely and and has *been applied to other kindred [*234 exclusively for the sake of plunder, lucri causa. cases, such as cases arising on embargo and The law looks to it as an act of hostility, and non-intercouse acts. In short, the acts of the being committed by a vessel not commissioned master and crew, in cases of this sort, bind the and engaged in lawful warfare, it treats it as interest of the owner of the ship, whether he the act of a pirate, and of one who is emphat- be innocent or guilty; and he impliedly subically hostis humani generis. We think that mits to whatever the law denounces as a forthe aggressions established by the evidence feiture attached to the ship by reason of their bring the case completely within the prohibi- unlawful or wanton wrongs. In the case of tions of the act; and if an intent to plunder The United States v. The Schooner Little were necessary to be established (as we think it Charles (1 Brock. Rep., 347, 354), a case arisis not), the acts of aggression and hostility and ing under the embargo laws, the same argu233*] plunder committed on the *Portuguese ment which has been addressed to us, was vessel are sufficient to establish the fact of an upon that occasion addressed to Mr. Chief open although petty plunderage. Justice Marshall. The learned judge, in reply, said: "This is not a proceeding against the owner; it is a proceeding against the vessel for an offense committed by the vessel; which is not the less an offense, and does not the less subject her to forfeiture because it was committed without the authority and against the will of the owner. It is true that inanimate matter can commit no offense. But this body is animated and put in action by the crew, who are guided by the master. The vessel acts and speaks by the master. She reports herself by the master. It is therefore not unreasonable that the vessel should be affected by this report." The same doctrine was held by this court in the case of The Palmyra (12 Wheat. R., 1, 14), where, referring to seizures in revenue causes, it was said: The thing is here primarily considered as the offender, or rather the offense is primarily attached to the thing: and this whether the offense be malum prohibitum or malum in re. The same thing applies to proceeding in rem or seizures in the Admiralty." The same doctrine has been fully recognized in the High Court of Admiralty in England, as is sufficiently apparent from The Vrow Judith (1 Rob. R., 150); The Adonis (5 Rob. R., 256); The Mars (6 Rob. R., 87), and indeed in many other cases, where the owner of the ship has been held bound by the acts of the master, whether he was ignorant thereof or not.1

Besides, the argument interprets the act of Congress as though it contained only the word "depredation," or at least coupled aggression and depredation as concurrent and essential circumstances to bring the case within the penal enactment of the law. But the act has no such limitations or qualifications. It punishes any piratical aggression or piratical arch, or piratical restraint, or piratical seizure, as well as a piratical depredation. Either is sufficient. The search or restraint may be piratical although no plunder follows, or is found worth carrying away. What Captain Nunez designed under his false and hollow pretenses and excuses it may not be easy to say, with exact confidence or certainty. It may have been to train his crew to acts of Wanton and piratical mischief, or to seduce them into piratical enterprises. It may have been from a reckless and wanton abuse of power, to gratify his own lawless passions. It could scarcely have been from mental hallucinations; for there was too much method in his mad projects to leave any doubt that there was cunning and craft and worldly wisdom in his course, and that he meditated more than he chose to explain to his crew. They never suspected or accused him of insanity, although they did of purposes of fraud.

The next question is, whether the innocence of the owners can withdraw the ship from the penalty of confiscation under the act of Con- The ship is also by the general maritime gress. Here, again, it may be remarked that law held responsible for the torts and misconthe act makes no exception whatsoever, wheth- duct of the master and crew thereof, whether er the aggression be with or without the co- arising from negligence or a willful disregard operation of the owners. The vessel which of duty; as, for example, in cases of collision Commits the aggression is treated as the offend- and other wrongs done upon the high seas or er, as the guilty instrument or thing to which elsewhere within the admiralty and maritime the forfeiture attaches, without any reference jurisdiction, upon the general policy of that whatsoever to the character or conduct of the law, which looks to the instrument itself, used owner. The vessel or boat (says the act of as the means of the mischief, as the best and Congress) from which such piratical aggressurest pledge for the compensation and indemon, &c., shall have been first attempted or made shall be condemned. Nor is there anything new in a provision of this sort. It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, or by the master or crew thereof, a wrong or offense has been done as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof.

And this is done from the necessity of the case, as the only adequate means of suppress

nity to the injured party.

*The act of Congress has therefore [*235 done nothing more on this point than to affirm and enforce the general principles of the maritime law and of the law of nations.

The remaining question is, whether the cargo is involved in the same fate as the ship. In respect to the forfeiture under the Act of 1819, it is plain that the cargo stands upon a very different ground from that of the ship. Nothing

1.-See 3 Wheaton's Rep., Appendix, p.37 to p. 40.

chief, then it assumes the character of a private unauthorized war, and may be punished by all the penalties which the law of nations can properly administer;" that is (as the context shows), confiscation and forfeiture of the offending vessel.

It is

Now, it is impossible to read this language and not to feel that it directly applies to the present case. In the first place, it shows that the offending vessel may by the law of nations, in the case supposed of an attack from malignity, from a gross abuse of power, and a settled purpose of mischief, be justly subjected to forfeiture. But it is as clear that the language is solely addressed to the offending vessel and was not intended as of course to embrace the cargo, even if it belonged to the same owner, and he did not participate in or authorize the offensive aggression. For the court afterwards, in another part of the case, where the subject of the cargo was directly under consideration, said: "But the second count" (founded on the law of nations) "embraces a wider range; and if it had been proved in its aggravated extent, it does not necessarily follow that the cargo ought to be exempted. That is a question which would require grave deliberation. in general true that the act of the master does not bind the innocent owner of the cargo: but the rule is not of universal application. And where the master is also agent and the owner of the cargo, or both ship and cargo belong to the same person, a distinction may, perhaps, arise in the principle of decision." So that the *court studiously avoided giving a con- [*237 clusive 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 co-operates 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. Rep., p. 37-40.

is said in relation to the condemnation of the cargo in the fourth section of the act; and in the silence of any expression of the Legislature, in the case of provisions confessedly penal, it ought not to be presumed that their intention exceeded their language. We have no right to presume that the policy of the act reached beyond the condemnation of the offending vessel. The argument, then, which seeks condemna tion of the cargo, must rely solely and exclusively for its support upon the sixth and seventh counts, founded upon the law of nations and the general maritime law. So far as the general maritime law applies to torts or injuries com mitted on the high seas and within the admiralty jurisdiction, the general rule is, not forfeiture of the offending property; but compen sation to the full extent of all damages sustained or reasonably allowable, to be enforced by a proceeding therefor in rem or in personam. It is true that the law of nations goes in many cases much farther, and inflicts the penalty of confiscation for very gross and wanton violations of duty. But, then, it limits the penalty to cases of extraordinary turpitude or violence. For petty misconduct, or petty plunderage, or petty neglect of duty, it contents itself with the mitigated rule of compensation in damages. Such was the doctrine recognized by this court in the case of The Marianna Flora (11 Wheat. R., 1, 40), where an attempt was made to inflict the penalty of confiscation for an asserted (but not proved) piratical or hostile aggression. Upon that occasion, the court said: "The other count" (which was similar to those now under our consideration) "which seeks condemnation on the ground of an asserted hostile aggression, admits of a similar answer. It proceeds upon the principle that, for gross violations of the law of nations on the high seas, the penalty of confiscation may be properly inflicted upon the offending property, Supposing the general rule to be so in ordinary cases of property taken in delicto, it is not, therefore, to be admitted, that every offense, however small, however done under a mistake of rights, or for purposes wholly defensive, is to be visited with such 236*] harsh punishments. Whatever may be the case, where a gross, fraudulent, and unprovoked attack is made by one vessel upon another upon the sea, which is attended with grievous loss or injury, such effects are not to be attributed to lighter faults or common negligence. It may be just in such cases to award to the injured party full compensation The present case seems to us fairly to fall for his actual loss and damage; but the inflic within the general principle of exempting the tion of any forfeiture beyond this does not seem cargo. The owners are confessedly innocent to be pressed by any considerations derived of all intentional or meditated wrong. They from public law." And the court afterwards are free from any imputation of guilt, and every added: "And a piratical aggression by an armed suspicion of connivance with the master in his vessel sailing under the regular flag of any hostile acts and wanton misconduct. Unless, nation, may be justly subjected to the penalty then, there were some stubborn rule, which, of confiscation for such a gross breach of the upon clear grounds of public policy, required law of nations. But every hostile attack in a the penalty of confiscation to extend to the time of peace is not necessarily piratical. It cargo, we should be unwilling to enforce it. may be by mistake or in necessary self-defense. We know of no such rule. On the contrary, or to repel a supposed meditated attack by pi- the act of Congress, pointing out, as it does, in rates. It may be justifiable, and then no blame this very case, a limitation of the penalty of attaches to the act; or it may be without any confiscation to the vessel alone, satisfies our just excuse, and then it carries responsibility in minds that the public policy of our government damages. If it proceed farther, if it be an at- in cases of this nature is not intended to embrace tack from revenge or malignity, from a gross the cargo. It is satisfied by attaching the penabuse of power, and a settled purpose of mis-alty to the offending vessel, as all that public

This cause came on to be heard on the transeen by reference to the record, that a final descript of the record from the Circuit Court of cree was rendered on the 10th day of May, 1843, the United States for the District of Maryland, from which an appeal was prayed by all the and was argued by counsel; on consideration parties. whereof, it is now here ordered, adjudged and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed, without costs.

whom the said promissory note declared upon was made and delivered at the time of its date and delivery then were, and yet are, citizens of and resident in the State of Mississippi, and were so at the time of the supposed transfer and delivery of the said promissory note to the said plaintiffs, by reason whereof, this honorable court cannot in law have or entertain jurisdiction of this cause, and this they, the said defendants, are ready to verify. Wherefore, the said defendants pray judgment of the said writ and declaration, and that the same may be quashed. SANDERS, for defendants."

To this plea the plaintiffs demurred, and the court sustained the demurrer. Judgment was accordingly entered for the plaintiffs, and to review the opinion of the court upon the dethe present writ of error was brought, The case was argued by Mr. Walker for the appellants, who relied upon the cases in 16 Peters, 86 and 315.

murrer,

Mr Justice STORY 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.

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 (ch. 20), which gives jurisdiction to the Circuit Court in cases where "the suit is between a citizen of the State where the suit is brought, and a citizen of another State." But it has been already decided by this court, that the statute of Mississippi is of no force or effect in the *courts of the United States [*244 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 Peters, 89). The other point, that the case falls within the prohibition of the 11th section of the Judiciary Act the 1789 (ch. 20), was as fully recognized by this court in Gibson and Martin v. Chew (16 Peters, 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.

ORDER.

243] The original action was brought by the Bank of Memphis, 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 defend ants), dated at Princeton, Washington County. Mississippi, May 17th, 1838, whereby on the 1st of January, 1839, they, or either of them promised to pay to the order of Briggs. Lacoste & Co., $2,899.50, for value received, payable and negotiable at the Planters' Bank of Missis sippi, at Natchez. The declaration alleged tithe in the bank to the note by the indorsement of the payees, Lacoste using the name and description of Briggs, Lacoste & 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. THOMAS GRIFFIN AND HUGH ERVIN The defendants pleaded that they are citizens of Mississippi, and that the persons composing the firm of Briggs, Lacoste & 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.

This cause came on to be heard on the tran

script of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel; on consideration whereof, it is now here ordered of the said Circuit Court in this cause be, and and adjudged by this court, that the judgment the same is hereby reversed with costs; and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to that court to enter judgement for the defendants.

Cited-6 How., 37, 39; 18 How., 520; 1 Biss., 101,

277; 17 Blatchf., 2.

V.

ROBERT THOMPSON.

No discharge of judgment, where marshal, without plaintiffs' consent, accepted depreciated currency in satisfaction of execution.

discharge of an execution unless authorized to do A marshal has no right to receive bank notes in so by the plaintiff.

If the marshal does receive such papers, the

court, in the exercise of its power to correct the irregularities of its officer, will refuse a motion of the defendant to have satisfaction entered on the judgment, and refuse also to quash a second fieri facias.

of the Circuit Court for the Southern Dis

The 11th section of the Judiciary Act of 1789 (ch. 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, un- TPON a certificate of division from the judges less the suit might have been prosecuted in such UP court to recover the said contents, if no assigr-trict of Mississsppi. ment had been made, except in cases of for eign 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 indorsers of the payee, and the payee and the makers are all citizens of Mississippi. The ground on which the origi: nal judgment was given, probably, was that

This was a motion made by Thomas Griffin and Hugh Ervin to have satisfaction entered on the clerk's office of the court against them on an execution of fieri facias, which issued from the 4th day of June, 1840, in favor of Robert

NOTE. As to payment in forged or depreciated paper, effect of, see note to Bank of United States v. Bank of Georgia, 10 Wheat., 333.