The United States v. Anderson.

owners, together with the proceedings under it, rest upon a public policy recognized throughout the commercial world, the policy of encouraging investments in ships, by limiting the liability of the owners for wrongs done by the master, to the value of the sea venture.

The decree of the District Court is affirmed.

THE UNITED STATES VS. CHARLES ANDERSON.

An indictment purporting to be founded on § 5,346 of the Revised Statutes, charging the commission of an assault with a dangerous weapon, on board a vessel belonging in whole or in part to a citizen of the United States, alleged the assault to have taken place "in the harbor of Guantanamo, in the Island of Cuba," but did not allege that that place was out of the jurisdiction of any State of the United States: Held, upon the authority of United States V. Jackelow, (1 Black, 484,) that the indictment was bad, for want of such allegation.

(Before BENEDICT, J., Southern District of New York, October 13th, 1879.)

66

BENEDICT, J. This case comes before the Court upon a motion to quash the indictment. The offence intended to be charged in the indictment is that enacted by § 5,346 of the Revised Statutes of the United States, where it is provided: Every person who, upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin or bay within the Admiralty jurisdiction of the United States, and out of the jurisdiction of any particular State, on board any vessel belonging in whole or in part to the United States, or any citizen thereof, with a dangerous weapon, or with intent to perpetrate any felony, commits an assault on another, shall be punished by a fine of not more than three thousand dollars, and by imprisonment at hard labor not more than three years.' "The act charged is an assault with a dangerous weapon on board the brig Sarah and Emma, a vessel belong

The United States v. Anderson.

ing in whole or in part to a citizen of the United States, in the harbor of Guantanamo, in the Island of Cuba, on waters within the Admiralty jurisdiction of the United States. The objection taken to this indictment is, that it contains no averment that the place where the offence is said to have been committed is out of the jurisdiction of any of the States of the Union. In the case of United States v. Jackelow, (1 Black, 484,) it was held by the Supreme Court of the United States, that the question whether a particular place be out of the jurisdiction of any State, when material in determining the extent of the jurisdiction of a Court, is a question of fact, to be passed on by the jury; and, in that case, the Supreme Court set aside a special verdict which found the offence to have been committed in waters adjoining the State of Connecticut, between Norwalk harbor and Westchester County in the State of New York, at a point five miles eastward of Lyons' Point, (which is the boundary between the States of New York and Connecticut,) and one mile and a half from the Connecticut shore at low water mark, upon the ground, that, in the absence of a finding by the jury that the place so described was out of the jurisdiction of any State, it was impossible for the Court to determine such to be the fact. If it was not competent for the Supreme Court, from such a description of the place as was given in Jackelow's Case, to say that the Court had jurisdiction to try the offender, certainly, it will not be competent for this Court to say that it has jurisdiction to try the defendant for an offence committed "in the harbor of Guantanamo, in the Island of Cuba." There may be an island called Cuba within the jurisdiction of some of the States of the Union, and, for all that is stated in this indictment, therefore, the place described may be within the jurisdiction of such State. If, as the Supreme Court held in the case referred to, the question. whether a certain place is out of the jurisdiction of a State be a question of fact, to be determined by the jury, then the fact must be averred and proved. No such averment is contained in this indictment, and, upon the authority of the

Smith v. The Town of Ontario.

Supreme Court of the United States, the omission must be held to be fatal.

The motion to quash the indictment is granted.

William P. Fiero, (Assistant District Attorney,) for the United States.

Benjamin B. Foster, for the defendant.

ANDREW J. SMITH VS. THE TOWN OF ONTARIO.

After the Court has heard and denied a motion for a new trial, in a suit at law, and a judgment has been rendered and paid and satisfied, it has no power to grant leave to re-argue the motion for a new trial,

The decision in Smith v. The Town of Ontario, (15 Blatchf. C. C. R., 267,) commented on.

(Before WHEELER, J., Northern District of New York, October 23d, 1879.)

WHEELER, J. This is a motion for leave to re-argue a motion for a new trial made after a verdict for the defendant at June Term, 1877, and heard and denied as of June Term, 1878. (15 Blatchf. C. C. R., 267.) The principal grounds upon which this motion is made are, as alleged, that there were material differences between the case as drawn up and printed, on which the former motion was heard, and the case as actually tried, and that the decision upon the former motion, while professing to follow, was contrary to, the decisions of this Court upon the same questions, when held by resident judges. It is opposed upon the ground that it is made out of time, and upon its merits.

The action was brought upon coupons to the amount of $525, from bonds issued in aid of the Lake Ontario Shore Railroad, under a special law of the State of New York, passed April 19th, 1869, (Laws of New York, of 1869, chap.

Smith v. The Town of Ontario.

241.) The case was made to turn upon the sufficiency of the affidavit of the assessors to prove consent to issuing the bonds, required by the Act before the bonds should be issued. By the printed case on which the motion for a new trial was heard, it appeared that some of the consents were filed in the county clerk's office on different days from others in December, 1870, and the affidavit in that month, without showing on what day of the month; and, in the decision of the case, stress was laid upon this diversity of filing, as showing that the affidavit was not so connected with the consents as to be helped out by their contents. On production now of the papers used at the trial, it appears that the affidavit and consents were each filed separately, and then all together as one roll, on the 23d day of that December, and that at some time they were all tied together. This does not seem to vary the case much from what it appeared to be before. The point was, that, although the affidavit showed that consent to something had been given, it did not show to what; and that, not referring or being attached to any consent, it could not be gathered that the affidavit meant that consent had been given to what was contained in the consents. The fact that the affidavit and consents were filed together as one roll, and attached together, would, standing alone, have some tendency to show that the affidavit, made after the consents, was made with reference to them, as was held by Blatchford, J., in Phelps v. Lewiston, (15 Blatchf. C. C. R., 131). But, when it appears that each paper was before filed separately, as if it came from different sources from the others, this tendency is done away with. If any other facts existed, tending to show that the affidavit was made with reference to the consents produced, they were not shown.

It is true, that the Court professedly intended to follow the former decisions of the Court, all of which had been made by resident judges, so far as appeared, in like cases. But, up to the time when the decision upon the motion for a new trial was made, no former case was produced, which, in its facts, appeared to be like this. It was not expected that

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Smith v. The Town of Ontario.

this case would be decided for the plaintiff because all actions upon such bonds or coupons had been so decided, nor because all actions upon such bonds or coupons in aid of the same road, or issued by the same town, had been; nor was it expected that an ambulatory decision, which would follow such as might thereafter be made, was to be rendered. It now appears, that cases like this upon their essential facts have been decided in favor of the plaintiffs, but no opinion has yet been produced in which any judge has discussed the sufficiency of any affidavit like this standing by itself, nor holding that the production of an affidavit is not necessary in order to recover upon such bonds or coupons. Such affidavits have been held to be sufficient, but upon what grounds they have been so held, and whether those grounds would be applicable to this case as it was in fact presented at the trial, has not yet been made clearly to appear. The motion was considered upon what was in fact proved, and not upon what might have been proved at the trial.

But, the motion was denied, judgment for the defendant, to recover its costs, was rendered on the verdict, and the costs appear to have been paid and the judgment satisfied, before this motion was filed. So, there is no motion to be re-argued, pending anywhere, in this case. The question might be reargued, but there would be nothing to be decided thereupon, if this motion for leave to re-argue should be granted. After the decision was made, the Court might at any time during the same term have, for good cause, changed it. And this might have been done at any time afterwards, while the matter was still depending in Court. (Harris v. Hardeman, 14 How., 334.) But, here, the term had ended and another intervened, and the whole matter had ceased to be depending anywhere long before this motion was filed. It was not filed in any cause, for there was no such cause depending; and granting it would be wholly unavailing. Courts frequently, or sometimes, overrule former decisions upon the same question, and decide it differently in new cases; but the former judgments, nevertheless, stand. (Hepburn v. Griswold, 8