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United States v. The Brig Glamorgan.

ment of the proceeds into the registry, at the September term, 1854, made a final decree, distributing the net proceeds equally between the United States, and the commander, officers, and crew of the brig Perry, a public armed vessel of the United States, who made the seizure of the Glamorgan, and ordering each moiety to be paid out of the registry accordingly; and it was paid, one moiety to the United States, and the other to the proctor of the private persons interested. Subsequently, the Secretary of the Navy not being satisfied of the correctness of this distribution, the District-Attorney, at the following December term of the District Court, applied to the Judge to reexamine so much of the decree as made distribution. The Judge heard the attorney, and upon that, made an entry on the record, that, having examined the order, and considered the same, he was of opinion it was correct, and therefore does not revoke or alter the same. An appeal was then claimed by the United States, and disallowed; and the question now is, whether the appeal should have been allowed?

The 21st section of the Judiciary Act of 1789, (1 Stat. at Large, 83,) allows an appeal from final decrees of the District Court to the next Circuit Court to be held for such district. The final decree in this case was made on the 8th of September, 1854. The next term of the Circuit Court, held in this district, was on the 15th of October, 1854. This appeal was not claimed until the December term of the District Court, and could not then be allowed, because it was too late to take an appeal to the term of the Circuit Court held next after the entry of the final decree. See Privateer Montgomery v. The Betsy, 1 Gal. 416; Norton v. Rich, 3 Mason, 443; United States v. Certain Hogsheads of Molasses, 1 Curtis, R. 276.

But it is argued, that the final decree was opened, at the December term, on motion of the District-Attorney; and that the right of appeal is to be considered as thereby revived, or a new right created. Without intending to give any opinion as to what it was fit for that Court to do, in respect to hearing

United States v. The Brig Glamorgan.

an argument on that motion, and without knowing what it would have done, if it had come to the conclusion that the order of distribution was erroneous, I am of opinion that it is not in the power of the District Court to open, or set aside a final decree, regularly entered at a former term of the Court, and thereby confer a new right of appeal upon a party, or revive a right lost by lapse of time.

The power of a Court of Admiralty over its final decrees, except in the cases provided for in the fortieth rule, made by the Supreme Court to regulate the practice in admiralty, is somewhat unsettled. It has been very little discussed in England, and until the decision of Doctor Lushington in The Monarch, 1 W. Rob. 21, it cannot be said that any thing respecting it, was determined, though the subject had been before the Court of Adiniralty in the Vrouw Hermina, 1 Rob. 163, and before the Court of Appeals in The Elizabeth, 2 Acton, 57. See also, The Herstelder, 1 Rob. 119, n.; The Fortuna, 4 Ib. 278; The Flora, 1 Hag. 298, 304. It was discussed by Mr. Justice Story in The Steamer New England, 3 Sum. 495.

In the case of The Monarch, Dr. Lushington held, that the High Court of Admiralty had the same power to vary its decrees, before they were enrolled, that were possessed by other courts of equity.

So far as I am aware, no court, either of law or equity, has exercised a summary control over its judgments, or decrees, after their enrolment, and after the expiration of the term at which they were entered. In our practice, decrees in the admiralty, as well as in equity, being matters of record, are deemed to be enrolled, as of the term of the Court at which they are finally passed. The Steamboat New England, 3 Sum. 495; Dexter v. Arnold, 5 Mason, 303, 310, 311; Whiting v. The Bank of the United States, 13 Peters, 6, 13. And after a final decree has been drawn up and entered, and the Court has adjourned without day, no further control can be

Kriesler v. Morton.

exercised by the District Court over it, save by force of the fortieth rule, already mentioned, or by a libel of review, respecting which I give no opinion.

In the case of The Steamboat New England, Mr. Justice Story speaking of such a case, says: "There could be no appeal; and the mode of redress must have been, if any, by a libel of review," which he proceeds to consider. In Washington Bridge Co. v. Stewart, 3 How. 424, the Supreme Court disclaimed all power to change its decrees after the expiration of the term at which they are entered. And in the Bank of the United States v. Moss, 6 How. 31, it was held, that the Circuit Courts could not set aside a judgment of a former term on motion, even for want of jurisdiction. A District Court, sitting in admiralty, is within the same rule.

My judgment is, that the claim of an appeal was rightly disallowed by the District Court; that this Court has no jurisdiction over the case, and can pronounce no opinion on the merits.

Hallett, District-Attorney, for the United States; no counsel contra.

JOHN KRIESLER US. MARCUS MORTON.

The Act of February 26, 1845, (5 Stat. at Large, 727,) requires a protest to sustain an action to recover back the additional duty of twenty per centum, assessed by way of penalty under the eighth section of the Tariff Act of 1846, (9 Stat. at Large, 42).

THE case is stated in the opinion of the Court.

CURTIS, J. This is the same case which was before the Court at a former term. It is reported in 1 Curtis, R. 413. After that opinion had been pronounced, it was suggested by

Kriesler v. Morton.

the plaintiff's counsel, that since the argument, it had been ascertained that the question whether an additional duty imposed under the eighth section of the Tariff Act of 1846, was to be deemed a penalty, had been carried to the Supreme Court, in a case from New York, and that if it should be held to be a penalty, it would admit of doubt whether a payment on account thereof, was within the requirements of the Act of February 26, 1845, (5 Stat. at Large, 727). Being of opinion that opportunity should be given to consider these questions, which had not been raised at the argument, judgment was suspended; and at this time, the decision of the Supreme Court having been made, the District-Attorney has moved for judgment. In Bartlett v. Kane, 16 How. 263, it was held that the twenty per centum exacted under the eighth section of the Tariff Act of 1846, was a penal duty, and not to be returned as part of the drawback, on reëxportation. In Ring v. Maxwell, 17 How. 147, it was held, that though an additional duty by way of penalty, it was not distributable among the officers of the customs.

Notwithstanding these decisions, I am clearly of opinion that the sums exacted under color of this law, cannot be recovered back without a protest, conformable to the requirement of the Act of February 26, 1845. The case is within both the words of the act, and the mischief which it was intended to provide against.

The terms of the act require a protest to enable a claimant to maintain an action against a collector, to recover money "paid as and for duties." The eighth section of the Act of 1846, requires the Collector, in the cases therein enumerated, to levy, assess; and collect, in addition to the duty imposed by law, "a duty of twenty per centum ad valorem, on each appraised value." Moneys thus paid are therefore paid as and for duties, and so are within the words of the act requiring a protest.

These cases are also within the mischief. Probably no

United States v. Small.

class of cases could be selected, in which it is so important that the Collector should be apprised, before his proceedings are closed, by payment of the duties, what the objections of the importer are. Because there is no class of cases so likely to give rise to disputes and questions as this one.

Moreover it will be found on examining this Act of February 26, 1845, that if these cases of payment on account of the twenty per centum, additional duty, are not within the last clause of the act requiring protests, they are not within the enabling claim, allowing actions to be brought, and so the importer would be left wholly without remedy in all cases where the collector had paid over the money, as was held in Cary v. Curtis, 3 How. 236. The act in question was passed to change the law announced by that decision, and I have no doubt, extends to this class of cases. Let judgment be rendered on the verdict for the defendant. G. T. Curtis and Griswold, for the plaintiff. Hallett, District-Attorney, contra.

THE UNITED STATES VS. SANFORD SMALL.

One who secretes himself on board a vessel before sailing and discovers himself after the vessel is at sea, is not one of the crew, though the master requires him to work, as a condition for his having food, and he does work.

Whether an assault was with a dangerous weapon, or not, may depend upon matter of fact, as upon the manner of the assault; and in such case, the Court cannot declare, as matter of law, that the assault, if committed with a belaying pin, was with a dangerous weapon. The question must be left to the jury. The danger referred to is, danger to life.

THIS was an indictment against the mate of the ship Tigress for beating and wounding James Sweeney, one of the

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