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trial. A writ of error is a common law process, and U. STATES removes for re-examination, nothing but the law. This statute observes this distinction. In admiralty and GOODWIN. maritime causes, an appeal is allowed from the District to the Circuit Court, if the matter in dispute exceeds 300 dollars, and yet decrees and judgments in civil actions may be removed by writ of error, from the District to the Circuit Court, though the value barely exceeds 50 dollars." In another part of this opinion, the judge adds, "that as to the appellate jurisdiction of the Supreme Court, the 22d section says, and upon a like process, that is, upon a writ of error, shall final judgments and decrees in civil actions, viz: cases not criminal, and suits in equity, &c.-Among the causes which may be brought to the Supreme Court, by writ of error, are cases which had been removed to the Circuit Court, by appeal from a District Court, which can only be cases of admiralty and maritime jurisdiction."

The objection made to this interpretation of the word appeal, that judgments in civil actions at common law, commenced in a District Court, could be re-examined only in a Circuit Court, if well founded in itself, could not, with any propriety, be addressed to courts, after the legislative meaning of the term is ascertained. The technical distinction between a writ of error and an appeal, and between the different cases to which they were applicable, was clearly marked in the act of 13th February, 1801, which was afterwards repealed by the act of the 8th of March, 1802. The former act, after providing for the removal of all final judgments or decrees, above the value of 50 dollars, from a District to a Circuit Court, by appeal, and by a like proceeding for a removal to the Supreme Court, of those cases only, which were of equity, of admiralty and maritime jurisdiction, and of prize or no prize, proceeded to provide for civil actions at common law, originating in a District Court, by declaring that final judgments, in - such cases, if of a certain value, might be removed, at once, from the District to the Supreme Court, by writ of error. So, that as the law stood at that time, a party, in cases at common law, had an election to carry his case, where it exceeded 2,000 dollars, by writ of error. from the District to the Circuit Court, under the 22d section of the act of 1789, but without the privilege of pro

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U. STATES ceeding farther, or to proceed with his cause, at once, to the Supreme Court, passing by the Circuit Court. GOODWIN. But it appears not to have been the policy of the legislature at that time, to subject the decisions of the District Court, in civil cases at coramon law, to more than one re-examination in an appellate Court.

1812.

Feb. 20th.

WHELAN

v.

THE UNITED STATES.

Cases of sei

from the sea,

by vessels of more than

THIS cause standing so late on the docket that it was zure upon wa- not likely to be called for trial at this term, DALLAS, for ters navigable the United States, suggested the propriety of assigning a particular day for the hearing, as it was a case of imten tons bur- portance, and involved a question of jurisdiction, viz: then for breach whether a seizure of a vessel, on waters navigable from of the laws of the sea for vessels of ten and more tons burthen, for civil cases of breach of a law of the United States, was to be tried by a admiralty and jury. This question was said to be important because risdiction, and the judge of the district of Pennsylvania had refused to are to be tried try any cases of that kind, until the question was finalwithout a jury. ly settled by this Court.

the U. S. are

maritime ju

The Court accordingly assigned a day for bearing that question, but intimated an opinion that it was already decided in the cases of the Vengeance 3. Dall. 297.-The Betsy and Charlotte. 4. Cranch, 443. and Yeaton v. United States, 5. Cranch, 281.

E. TILGHMAN, for the Appellant, after looking into those cases, abandoned the question as to jurisdiction, considering the cases cited as conclusive against him.

THE COURT, (all the judges being present,) said that the question had been certainly settled in this Court, upon full argument.

THE UNITED STATES

v.

THE BRIG ELIZA.

1812. February 29d.

Present....all the judges.

which has proceeded to a

is liable to be

THIS was an appeal from the sentence of the Circuit A vessel Court for the district of Delaware, which affirmed that of the district Court which dismissed the libel, and or- foreign port, dered the vessel to be restored. She had been seized contrary to by the collector of the district of Delaware, for having pro- act, of Janua the embargo "ceeded to a foreign port or place," (viz: to Havanna) ry 9th, 1808, contrary to the 3d section of the act of January 9th, 1808, seized upon (vol. 9. p. 11,) "supplementary to the act, entitled an her return, "act laying an embargo on all ships and vessels in the although that "ports and harbors of the United States;" and for hav- penalty of ing exported from the United States sundry goods, &c. double her contrary to the 4th section of the act of March 12th, 1808, she should "in addition to the act, entitled an act supplementary to not be seized. "the act, entitled an act laying an embargo," &c. (vol. 9. p. 71.)

By the Sd section of the act of January 9th, 1808, it is enacted, that if any vessel shall, contrary to the provisions of that act, or of the act to which that is a supplement, proceed to a foreign port or place, such vessel shall be wholly forfeited, "and if the same shall not be "seized, the owner or owners, agent, freightor or fac"tors of any such ship or vessel, shall, for every such "offence, forfeit and pay a sum equal to double the va "lue of the ship or vessel and cargo, and shall never thereafter be allowed a credit for duties," &c. "and "the master or commander of such ship or vessel, and "all other persons who shall knowingly be concerned "in such prohibited foreign voyage, shall each respec❝tively forfeit and pay a sum not exceeding twenty “thousand, nor less than one thousand dollars, for every such offence, whether the vessel be seized and con❝demned or not."

66

By the 4th section of the act of March 12th, 1808, it is enacted, "that it shall not be lawful to export from the VOL. VII.

16

act gives a

value in case

บ. BRIG ELIZA.

U. STATES"United States, in any manner whatever, any goods "wares or merchandize of foreign or domestic growth ❝or manufacture, and if any goods wares or merchan“dize shall, during the continuance of the act, entitled "an act laying an embargo," &c. "and of the act sup"plementary," &c. "contrary to the prohibitions of this "act, be exported from the United States either by land "or water, the vessel," &c. "in which the same shall have been exported, shall, together with the tackle, "apparel," &c. «be forfeited, and the owner or owners "of such goods," &c. " and every other person knowing❝ly concerned in such prohibited exportation, shall each respectively forfeit and pay a sum not exceeding ten "thousand dollars, for every such offence."

66

JOSEPH R. INGERSOLL, for the Appellees, (the Claimants of the vessel.)

Contended, that as the vessel was once out of the jurisdiction of the United States after the offence committed, the United States could only sue for the penalty of the double value, and could not seize the vessel itself. That the offence was complete before the return of the vessel, and while she was absent she could not be seized-that the words "if the same shall not be seized, mean, if the same cannot be seized. That as the vessel could not be seized before her return, and as the offence was complete before her return, the case had happened in which the United States were entitled to sue for the double value; and as the forfeiture of the vessel and the penalty of double value were not concurrent and cumulative remedies, the United States could only resort to the latter. The right to seize the vessel was lost by her escape, and could not be revived upon her return. If the United States had brought suit for the penalty before the return of the vessel, they might have supported it, although the vessel should have returned before judgment Their right of action was complete.

DALLAS, contra.

There is no limitation of time for the seizure-the vessel has actually been seized, and thereby the United States have relinquished their claim to the double value. If the vessel could be seized, it is probable the United States

v.

could not have rècovered the double value; and in an ac- U. STATES tion therefor it would have been necessary for the United States to prove that the vessel could not have been seized. This could not be proved while the vessel was ly- ELIZA. ing in a port of the United States, liable to seizure.

March 5th. All the judges being present,

MARSHALL, Ch. J. stated that it was the opinion of the Court that the vessel was liable to seizure; but that a majority of the Court was of opmion that the offence was not complete until the arrival of the vessel in a foreign port; but the facts of the case do not appear so as to enable the Court to decide that point; the cause is therefore continued for further proof.

BRIG

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THIS case is fully stated in the following opinion of The title to this Court, which was delivered by

land can be acquired and lost only in

STORY, Justice, on the 24th of February, all the the manner

judges being present.

prescribed by the law of the place where

situate.

A writ of intrusion was brought by the United States such land is against the Defendant in error to recover possession of an undivided part of certain land lying within the district of Maine. Upon the trial of the cause in the district Court of that district, a special verdict was found by the jury, upon which the same Court gave judgment in favor of the Defendant in error. This judgment was afterwards affirmed in the Circuit Court of Massachusetts, and is now before the Supreme Court for a final decision.

By the special verdict it appears that the claim of the United States to the land in controversy is under one

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