If the decree is rendered in respect to any subject which is merely within the discretion of the court, no appeal lies, as in respect to costs,1 amendments,2 a petition to open a decree,3 to reinstate a cause which has been dismissed, to grant a new trial,5 or to dissolve an injunction, unless the bill has been finally disposed of. When an order is made which is intended merely to carry out a decree, this cannot be said to be a final decree from which an appeal lies, as an order of sale in execution of an original decree; 7 or an attachment against a party who refuses to obey a decree of the court.8 Where a provisional decree was entered for the libellant for $4,000 and interest and costs, with liberty to either party, within twenty days, to take an order of reference to a commissioner to ascertain and report the amount due, and on the coming in of the report, either party to be at liberty to move the court to frame the decree in correspondence therewith, this was held not to be a final decree.9 In causes of seizure for the breach of the revenue laws, the right of appeal depends upon the value of the property at the time of seizure, and not on the net proceeds, after expenses, charges, duties, etc., are deducted.10 pleas it was decided that a certain ordinance of the city of Charleston was unconstitutional; but on application to the highest court in the State the decision was reversed, and the writ of error was then brought; and it was held that the decree was a final one, and that the writ of error would lie. See also Holmes v. Jennison, 14 Pet. 540. 1 Canter v. American Ins. Co. 3 Pet. 307; Harmony v. United States, 2 How. 210; United States v. Brig Malek Adhel, 2 How. 210, 237. * Marine Ins. Co. of Alexandria v. Hodgson, 6 Cranch, 206; United States v. Buford, 3 Pet. 12; Walden v. Craig, 9 Wheat. 576; Chirac v. Reinicker, 11 id. 280. Brockett v. Brockett, 2 How. 238. Welsh v. Mandeville, 7 Cranch, 152. See Sparrow v. Strong, 3 Wallace, 97. McCollum v. Eager, 2 How. 61; Gibbons v. Ogden, 6 Wheat. 448; Verden v. Coleman, 18 How. 86. See also, generally, Smith v. Trabue, 9 Pet. 4; Boyle v. Zacharie, 6 Pet. 648; Toland v. Sprague, 12 Pet. 300; Evans v. Gee, 14 Pet. 1; Barton v. Forsyth, 5 Wallace, 190. 7 Carr v. Hoxie, 13 Pet. 460. McMicken v. Perin, 20 How. 133. The Yuba, 4 Blatchf. C. C. 314. 10 United States v. 84 Boxes of Sugar, 7 Pet. 453. CHAPTER IV. OF JURISDICTION IN CASES OF SEIZURES. THE district court is the primary court of revenue, having original jurisdiction in all cases of seizures under the statutes of the United States concerning imposts, navigation, or trade; it may try all questions and entertain all suits, either for the condemnation or acquittal of the property seized; and may decree restoration and compel delivery of the property or of its proceeds or value, into the possession of those whom it finds ultimately to be entitled thereto; and may do this as well by summary decree. or decretal order, if the case be already before the court, as upon original proceedings. It does not derive its jurisdiction from any possession, actual or supposed, of its officers, but from the act and the place of the seizure for the forfeiture;2 and if it once acquire jurisdiction, it seems that this is not avoided by any subsequent irregularity,3 1 The Abby, 1 Mason, 360. The libel should, therefore, aver that the vessel has been seized in the district where suit is brought, and that the seizure still subsists. The Washington, 4 Blatchf. C. C. 101. The Bolina, 1 Gallis. 75. On p. 81, Story, J., said: "In the admiralty, in all proceedings in rem, the court has a right to order the thing to be taken into the custody of the law, and it is presumed to be in the custody of the law, unless the contrary appears; and when once a vessel is libelled, then she is considered as in the custody of the law, and at the disposal of the court; and monitions may be issued to persons having the actual custody, to obey the injunctions of the court. The jurisdiction of the admiralty, however, is not founded on that circumstance.” And on p. 83," The district court of the United States derives its jurisdiction, not from any supposed possession of its officers, but from the act and place of seizure for the forfeiture. Act 24th September, 1789, c. 20. And when once it has acquired a regular jurisdiction, I do not perceive how any subsequent irregularity would avoid it. It may render the ultimate decree ineffectual in certain events, but the regular results of the adjudication must remain. I do not apprehend that an accidental destruction by fire would prevent the court from protecting its officers from prosecution by pronouncing, if just, a regular condemnation." In the case of Jennings v. Carson, 4 Cranch, 2, the principles of admiralty law The court of the district in which the seizure is first made (without regard to the place where the forfeiture occurs), has exclusive original cognizance of it;1 and if the property be carried into another district, the circuit court will remand the property to the district in which it was originally seized.2 But if the seizure be made upon the high seas, or within the territory of a foreign power, that court has cognizance of it, into which court, or the district of which court, it is finally carried. If the seizure is on land, the court proceeds as a court of common law, with a jury, and the general course of the English Exchequer upon informations in rem is followed.5 These two jurisdictions, admiralty and common law, though vested in one court, are perfectly distinct and independent, and cannot be blended together. But if the seizures be upon waters as to the jurisdiction of the court over the property, were fully laid down by Marshall, C. J. The privateer Addition, cruising under a commission during the war with Great Britain, captured the Sloop George and libelled her in the court of admiralty for New Jersey, where she was condemned and decreed to be sold. The claimant, Jennings, appealed, and the decree was reversed by the circuit court. Pending the appeal the vessel was sold; and Jennings brought a suit against the captors as wrongdoers. The court held, that the moment a vessel was libelled, it was in the custody of the law, not of the captors, and that the court of admiralty, having possession of the property, had an undoubted right to sell it for the benefit of the parties. The law of these two points was ably examined under the principles then acknowledged (1807), and the conclusions there laid down appear to be now well settled. .... In regard to the question of irregularity in the record and in the manner of sale, the court said, in Jennings v. Carson: "At any rate, the court of admiralty must be supposed to have done its duty, and to have been in possession of the thing in contest, if its duty required that possession. . . . . The George and her cargo, therefore, must be considered as being in custody of the law, unless the contrary appears. If this conclusion be right, it follows that the regularity of the sale is a question of no importance to the defendants, since that sale was the act of a court having legal possession of the thing, and acting on its own authority." 1 Keene v. United States, 5 Cranch, 304. The Abby, 1 Mason, 360, per Story, J. * The Abby, 1 Mason, 360. 391. The Ship Richmond v. United States, 9 Cranch, 102; The Merino, 9 Wheat. ⚫ United States v. Fourteen Packages of Pins, Gilpin, 235; 651 Chests of Tea v. United States, 1 Paine, C. C. 499, 504; The Sarah, 8 Wheat. 391. In The Sarah, 8 Wheat. 391, Marshall, C. J., after stating the case, proceeded as follows: "By the act constituting the judicial system of the United navigable from the sea by vessels of ten or more tons burden, this States, the district courts are courts both of common law and admiralty jurisdiction. In the trial of all cases of seizure on land, the court sits as a court of common law. In cases of seizure made on waters navigable by vessels of ten tons burden and upwards, the court sits as a court of admiralty. In all cases at common law, the trial must be by jury. In cases of admiralty and maritime jurisdiction, it has been settled in the cases of United States v. La Vengeance, 3 Dall. 297; United States v. Sch. Sally, 2 Cranch, 406; and United States v. The Betsey & Charlotte, 4 Cranch, 443; that the trial is to be by the court. Although the two jurisdictions are vested in the same tribunal, they are as distinct from each other as if they were vested in different tribunals, and can no more be blended, than a court of chancery with a court of common law. The court for the Louisiana district was sitting as a court of admiralty; and when it was shown that the seizure was made on land, its jurisdiction ceased. The libel ought to have been dismissed, or amended by charging that the seizure was made on land. The direction of a jury in a case where the libel charged a seizure on water was irregular; and any proceeding of the court, as a court of admiralty, after the fact that the seizure was made on land appeared, would have been a proceeding without jurisdiction. The court felt some disposition to consider this empanelling of a jury at the instance of the claimants, as amounting to a consent that the libel should stand amended; but on reflection, that idea was rejected. If this is considered as a case at common law, it would be necessary to dismiss this appeal; because the judgment could not be brought before this court but by writ of error. If it is considered as a case of admiralty jurisdiction, the sentence ought to be reversed, because it could not be pronounced by a court of admiralty on a seizure made on land. As the libel charges a seizure on water, it is thought most advisable to reverse all the proceedings to the libel, and to remand the cause to the district court for further proceedings, with directions to permit the libel to be amended." In 1828, the same case came on to be heard again, under the name of United States v. 422 Casks of Wine, 1 Pet. 547, judgment having been rendered in the court below in favor of the claimants. The appeal was made on the ground that the original claimants, Hazard & Williams, were not the real owners of the wine under seizure. The court held that it was too late for this ground to be taken, because it should have been taken before the trial in the court below. The court said: "The objection is founded upon a mistaken view of the time, nature, and order of the proceedings proper in suits in rem whether arising on the admiralty or exchequer side of the court. In such suits the claimant is an actor, and entitled to come before the court in that character only, in virtue of his proprietary interest in the thing in controversy; this alone gives him a persona standi in judicio. It is necessary that he should establish his right to that character, as a preliminary to his admission as a party ad litem, capable of sustaining the litigation. He is, therefore, in the regular and proper course of practice, required, in the first instance, to put in his claim upon oath, averring in positive terms, his proprietary interest. If he refuses so to do, it is a sufficient reason for a rejection of his claim. If the claim be made through the intervention of an agent, the CH. IV.] JURISDICTION IN CASES OF SEIZURES. 221 court had admiralty jurisdiction by the statute by libel without If the libel charge the seizure as having been made on the water, The district court has, however, no jurisdiction to enforce a lien If this is not done, it furnishes matter of exception, and may be insisted upon by the adverse party, for It the dismissal of the claim. If the claim be admitted upon this preliminary proof, it is still open to contestation, and, by a suitable exceptive allegation in the admiralty, or by a correspondent plea in the nature of a plea in abatement to the person of the claimant, in the exchequer, the facts of proprietary interest sufficient to support the claim may be put in contestation and formally decided. is in this stage of the proceedings, and in this only, that the question of the claimant's right is generally open for discussion. If the claim is admitted without objection, and allegations or pleadings to the merits are subsequently put in, it is a waiver of the preliminary inquiry, and an admission that the party is rightly in court and capable of contesting the merits." But when, after the merits have been passed upon, it appears that the rights of some third person have been wrongfully invaded, it is a matter for the consideration of the court, but, in no shape, a matter which the original promovent could require at its hands. 1 The Margaret, 9 Wheat. 421. * The Sarah, 8 Wheat. 391. 3 United States v. 350 Chests of Tea, 12 Wheat. 486. In this case, a libel was filed against 350 chests of tea, for the purpose of compelling the payment of the duties thereon. The teas had been landed and stored, and fraudulently and secretly taken from the store-house. The court decided that the duties having been "secured to be paid," according to the statute, they were not now due, and proceeded, p. 497, "By the 9th section of the judiciary act, the district courts have exclusive original cognizance," etc. (giving the substance of the section). "Now it is not pretended that this is a civil cause of admiralty and maritime jurisdiction; and it has already been shown that there is no law of the United States, of impost or otherwise, to warrant the seizure of the teas in question, or to subject them to forfeiture. But even if there were such a law, the only proceed |