Gelston v. Hoyt
16 U.S. 246

Annotate this Case

U.S. Supreme Court

Gelston v. Hoyt, 16 U.S. 3 Wheat. 246 246 (1818)

Gelston v. Hoyt

16 U.S. (3 Wheat.) 246

Syllabus

Under the Judiciary Act of 1789, ch. 20, s. 25, giving appellate jurisdiction to the Supreme Court of the United States from the final judgment or decree of the highest court of law or equity of a state in certain cases, the writ of error may be directed to any court in which the record and judgment on which it is to act may be found, and if the record has been remitted by the highest court, &c., to another court of the state, it may be brought by the writ of error from that court.

The courts of the United States have an exclusive cognizance of the questions of forfeiture upon all seizures made under the laws of the United States, and it is not competent for a state court to entertain or decide such question of forfeiture. If a sentence of condemnation be definitively pronounced by the proper court of the United States, it is conclusive that a forfeiture is incurred; if a sentence of acquittal, it is equally conclusive against the forfeiture, and in either case the question cannot be again litigated in any common law forum.

Where a seizure is made for a supposed forfeiture under a law of the United States, no action of trespass lies in any common law tribunal until a final decree is pronounced upon the proceeding in rem to enforce such forfeiture, for it depends upon the final decree of the court proceeding in rem whether such seizure is to be deemed rightful or tortious, and the action, if brought before such decree is made, is brought too soon.

If a suit be brought against the seizing officer for the supposed trespass while the suit for the forfeiture is depending, the fact of such pendency may be pleaded in abatement or as a temporary bar of the action. If after a decree of condemnation, then that fact may be pleaded as a bar; if after an acquittal with a certificate of reasonable cause of seizure, then that may be pleaded as a bar. If after an acquittal without such certificate, then the officer is without any justification for the seizure, and it is definitively settled to be a tortious act. If to an action of trespass in a state court for a seizure, the seizing officer plead the fact of forfeiture in his defense without averring a lis pendens or a condemnation, or an acquittal with a certificate of reasonable cause of seizure, the plea is bad, for it attempts to put in issue the question of forfeiture in a state court.

At common law, any person may, at his peril, seize for a forfeiture to the government, and if the government adopt his seizure and the property is condemned, he is justified. By the Act of 18 February, 1793, ch. 8, s. 27, officers of the revenue are authorized to make seizures of any ship or goods for any breach of the laws of the United States.

The statute of 1794, ch. 50, s. 3, prohibiting the fitting out any ship, &c., for the service of any prince or states to cruise against the subjects, &c., of any other foreign prince or state, does not apply to any new government, unless it has been acknowledged by the United States or by the government of the country to which such new state belonged. And a plea which sets up a forfeiture under that act in fitting out a ship to cruise against such new state must aver such recognition or it is bad. A plea justifying a seizure under this statute need not state the particular prince or state by name against whom the ship was intended to cruise.

A plea justifying a seizure and detention by virtue of the seventh section of the act of 1794, under the express instructions of the President, must aver that the naval or military force of the United States was employed for that purpose and that the seizor belonged to the force so employed. The seventh section of the act was not intended to apply except to cases where a seizure or detention could not be enforced by the ordinary civil power and there was a necessity, in the opinion of the President, to employ naval or military power for this purpose.

To trespass for taking and detaining and converting property, it is sufficient to plead a justification of the taking and detention, and if the plaintiff relies on the conversion, he should reply it by way of new assignment.

A plea alleging a seizure for a forfeiture as a justification should not only state the facts relied on to establish the forfeiture, but aver that thereby the property became and was actually forfeited, and was seized as forfeited.

A forfeiture attaches in rem at the moment the offense is committed, and the property is instantly divested.

The seventh section of the act of 1794 did not authorize the President to order private individuals to seize, but only to employ the military and naval force to enforce a seizure.

An acquittal in the district court is conclusive.

State courts cannot try the question of forfeiture.

Defect of the second plea as containing an argumentative averment.

The rival chiefs in the Island of St. Domingo are not foreign princes or states within the Act of 1794, ch. 50, prohibiting the fitting out any ship for the service of any foreign prince or state to cruise against any other foreign prince or state.

It is the exclusive right of governments to acknowledge new states arising in the revolutions of the world, and until such recognition by our government or by that to which the new state previously belonged, courts of justice are bound to consider the ancient order of things as remaining unchanged.

Page 16 U. S. 248

This cause had been removed into that court by the present plaintiffs in error, by writ of error directed to the supreme court of the said state. In January, 1816, the Court of the State of New York for the Correction of Errors in all things affirmed the judgment which had been rendered by the supreme court of the State of New York in favor of Hoyt, the present defendant in error. And before the coming of the writ of error issued from this Court, the said Court for the Correction of Errors of the State of New York, according to the laws of the State of New York and the practice of that court, had remitted the record, which had been removed from the supreme court of the State of New York to the said supreme court, with a mandate thereon requiring the

Page 16 U. S. 249

supreme court of the State of New York to execute the judgment which had been so rendered by it in favor of the defendant in error. And the said record having been so remitted, the Court of Errors of the State of New York, upon the coming of the said writ of error from this Court, made the following return thereto:

"State of New York, ss."

"The President of the Senate, the senators, chancellor, and judges of the supreme court, in the Court for the Trial of Impeachments and the Correction of Errors certify and return to the Supreme Court of the United States that before the coming of their writ of error, the transcript of the record in the cause in the said writ of error mentioned, together with the judgment of this court thereon, and all things touching the same, were duly remitted in pursuance of the statute instituting this court into the Supreme Court of Judicature of this state to the end that further proceedings might be thereupon had, as well for execution as otherwise, as might be agreeable to law and justice, and in which Supreme Court of Judicature the said judgment, and all other proceedings in the said suit now remain of record, and as the same are no longer before or within the cognizance of this court, this court is unable to make any other or further return to the said writ. All which is humbly submitted."

Thereupon the counsel for the plaintiffs in error made an application to the supreme court of the State of New York to stay the proceedings upon said judgment till an application could be made to this Court in respect to the said writ of error. To avoid this delay, the counsel under the advice or suggestion of the judges of the said supreme court of

Page 16 U. S. 250

the State of New York, entered into the following agreement, viz.,

"It is agreed between the attorneys of the above named plaintiffs and defendant in error that the annexed is a true copy of the record and bill of exceptions, returned by the supreme court of the State of New York to the Court of Errors of the said state, and remitted by the said Court of Errors, in the affirmance of the judgment of the said supreme court to the said supreme court. And that the said copy shall be considered by the said Supreme Court of the United States as a true copy of the said record and bill of exceptions, and shall have the same effect as if annexed to the writ of error in the above cause from the said Supreme Court of the United States, and that the clerk of the supreme court of the State of New York transmit the same, with this agreement to the clerk of the Supreme Court of the United States, and that the same be annexed by the said clerk of the Supreme Court of the United States, to the said writ of error as a true copy of the said record and bill of exceptions."

"Record and Bill of Exceptions."

"City and County of New York, ss. Be it remembered that in the term of January in the year of our Lord one thousand eight hundred and thirteen came Goold Hoyt, by Charles Graham, his attorney, into the Supreme Court of Judicature of the people of the State of New York, before the justices of the people of the State of New York, of the Supreme Court of Judicature of the same people, at the capitol, in the City of Albany, and impleaded David Gelston and Peter A. Schenck, in a certain plea of trespass, on which the said Goold Hoyt

Page 16 U. S. 251

declared against the said David Gelston and Peter A. Schenck in the words following: "

" City and County of New York, ss. Goold Hoyt, plaintiff in this suit, complains of David Gelston and Peter A. Schenck, defendants in the suit, in custody, &c. For that, whereas, the said defendants, on the tenth day of July, in the year of our Lord one thousand eight hundred and ten, with force and arms, at the City of New York, in the County of New York, and at the first ward of the same city, the goods and chattels of the said plaintiff, of the value of $200,000, then and there found did take and carry away, and other injuries to the said plaintiff then and there did, to the great damage of the said plaintiff, and against the peace of the people of the State of New York. And also for that the defendants afterwards, to-wit, on the same day and year last aforesaid, at the city and county, and ward aforesaid, with force and arms, to-wit, with swords, staves, hands, and feet, other goods and chattels of the said plaintiff, to-wit, a ship or vessel of the said plaintiff, called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels salted provisions, twenty hogsheads of ship bread, of the value of $200,000, at the place aforesaid found, did take and carry away, and other wrongs and injuries to the said plaintiff then and there did, to the great damage of the said plaintiff, and against the peace of the people of the State of New York."

" And also for that the said

Page 16 U. S. 252

defendants afterwards, to-wit, on the same day and year, and at the place aforesaid, the goods and chattels of the said plaintiff, to-wit, a ship or vessel of the said plaintiff, called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, of the value of $200,000, then and there being and found, seized, took, carried away, damaged, and spoiled, and converted and disposed thereof to their own use, and other wrongs to the said plaintiff then and there did, to the great damage of the said plaintiff, and against the peace of the said people of the State of New York"

" And also for that the said defendants, on the same day and year aforesaid, with force and arms, to-wit, with swords, staves, hands, and feet, to-wit, at the city, county, and ward aforesaid, seized and took a certain ship or vessel of the said plaintiff of great value, to-wit, of the value of $200,000, and in which said ship or vessel the said plaintiff then and there intended and was about to carry and convey certain goods and merchandises, for certain freight and reward, to be therefor paid to him the said plaintiff, and then and there carried away the said ship or vessel and kept and detained the same from the said plaintiff for a long space of time, to-wit hitherto, and converted and disposed thereof to their own use, and thereby the said plaintiff was hindered and prevented from carrying and conveying the said goods and merchandises as aforesaid, and thereby

Page 16 U. S. 253

lost and was deprived of all the profit, benefit, and advantage which might and would otherwise have arisen and accrued to him therefrom, to-wit, at the city, county and ward aforesaid, and other wrongs and injuries to the said plaintiff then and there did, against the peace of the people of the State of New York, and to the great damage of the said plaintiff."

" And also for that the said defendants, afterwards, to-wit, on the same day and year last aforesaid, at the city, county, and ward aforesaid, with force and arms, seized, and took possession of divers goods and chattels of the said plaintiff, then and there found, and being in the whole of a large value, that is to say, a ship or vessel of the said plaintiff, called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, twenty hogsheads of ship bread, of the value of $200,000, and staid and continued in possession of the said goods and chattels so by them seized and taken as aforesaid, and the said goods and chattels afterwards took and carried away, from and out of the possession of the said plaintiff, whereby and by reason and in consequence of such said seizure and of other the premises aforesaid, the said plaintiff not only lost and was deprived of his said goods and chattels and of all profits, benefits, and advantages that could have arisen and accrued to him for the use, sale, employment, and disposal thereof, but was also forced and obliged to and did actually lay out and expend large sums of money and to be at further trouble and expense

Page 16 U. S. 254

in and about endeavoring to obtain restitution of the property so by the said defendants seized as aforesaid and other wrongs and injuries to the said plaintiff then and there did against the peace of the people of the State of New York and to the damage of the said plaintiff of $200,000, and therefore he brings suit, &c."

"And the said David Gelston and Peter A. Schenck thereto pleaded in the words following: "

"1st. Plea."

"And the said David Gelston and Peter A. Schenck, by Samuel B. Romaine, their attorney, come and defend the force and injury, when, &c., and say that they are not guilty of the said supposed trespasses, above laid to their charge or any part thereof in manner and form as the said Goold Hoyt hath above thereof complained against them, and of this they put themselves upon the country."

"2d. Plea."

"And for a further plea in this behalf as to the several trespasses mentioned in the first, second, third, fourth, and fifth counts in the declaration of the said plaintiff mentioned, to-wit, in taking and carrying away the goods and chattels of the said plaintiff mentioned in the first count in the said declaration of the said plaintiff, in taking and carrying away the goods and chattels of the said plaintiff, to-wit, a ship or vessel of the said plaintiff called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, mentioned in the second count in the said declaration of the said plaintiff; in seizing, taking, carrying away, damaging, spoiling,

Page 16 U. S. 255

converting, and disposing to their own use the goods and chattels of the said plaintiff, to-wit, a ship or vessel of the said plaintiff; called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, mentioned in the third count in the said declaration of the said plaintiff; in seizing, taking, carrying away, keeping and detaining, and converting and disposing to their own use a certain ship or vessel of the said plaintiff, mentioned in the fourth count in the said declaration of the said plaintiff and in seizing and taking possession of and in taking and carrying from and out of the possession of the said plaintiff the goods and chattels of the said plaintiff, to-wit, a ship or vessel of the said plaintiff called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, mentioned in the fifth count in the said declaration of the said plaintiff, above supposed to have been committed by the said David Gelston and Peter A. Schenck, "

brk:

they, the said David Gelston and Peter A. Schenck, by leave of the Court here for this purpose first had and obtained according to the form of the statute in such case made and provided say that the said Goold Hoyt ought not to have or maintain his aforesaid action against them, because they say that the said ship or vessel, called the American Eagle, with

Page 16 U. S. 256

her tackle, apparel, and furniture, the five hundred tons of stone ballast, one hundred hogshead of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff, are the same and not other or different, and that the seizing, taking, carrying away, keeping, detaining, damaging, spoiling, converting and disposing thereof to their own use mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff are the same and not other or different.

"And the said David Gelston and Peter A. Schenck further say that the ship or vessel mentioned in the fourth count in the said declaration of the said plaintiff is the same ship or vessel, called the American Eagle, mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff, and not other or different, and that the seizing, carrying away, keeping and detaining, and converting and disposing thereof, to their own use, mentioned in the fourth count in the said declaration of the said plaintiff, is the same seizing, taking, carrying away, keeping and detaining, and converting and disposing thereof, to their own use, mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff, and not other or different. And the said David Gelston and Peter A. Schenck further say that the said ship or vessel, called the American Eagle, with her tackle, apparel, and furniture, and the five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and

Page 16 U. S. 257

twenty hogsheads of ship bread, mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff, are included in and are the only goods and chattels embraced by the general description of goods and chattels mentioned in the first count in the said declaration of the said plaintiff, and that the taking and carrying away thereof, mentioned in the said first count in the said declaration of the said plaintiff, is the same taking and carrying away thereof mention in the said second, third, and fifth counts in the said declaration of the said plaintiff, and not other or different, and that the several trespasses mentioned in the first, second, third, fourth, and fifth counts in the said declaration of the said plaintiff, are the same trespasses, and not other or different."

"And the said David Gelston and Peter A. Schenck further say that before the tenth day of July in the year of our Lord one thousand eight hundred and ten, to-wit, on the first day of July in the year last aforesaid, at the port of New York, in the District of New York, to-wit, at the City of New York, in the County of New York, and it the first ward of the said city, the said ship or vessel, called the American Eagle, with her tackle, apparel, and furniture, was attempted to be fitted out and armed, and that the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, were then and there procured for equipment of the said vessel, and were then and there on board of the said vessel as a part of her said equipment, with intent that the said ship or vessel,

Page 16 U. S. 258

called the American Eagle, should be employed in the service of a foreign state, to-wit, of that part of the Island of St. Domingo which was then under the government of Petion, to commit hostilities upon the subjects of another foreign state, with which the United States of America were then at peace, to-wit, of that part of the Island of St. Domingo which was then under the government of Christophe, contrary to the form of the statute in such case made and provided."

"And the President of the said United States, to-wit, James Madison, who was then President of the said United States, by virtue of the power and authority vested in him by the Constitution and laws of the said United States, did afterwards, to-wit, on the sixth day of July in the year last aforesaid, at Washington, to-wit, at the City of New York, in the County of New York, and at the ward aforesaid, authorize, empower, instruct, and direct the said David Gelston and Peter A. Schenck to seize, take, carry away, and detain, as forfeited to the use of the said United States, the said ship or vessel called the American Eagle, with her tackle, apparel, and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread."

"And the said David Gelston and Peter A. Schenck further say that they did afterwards to-wit, on 10 July in the year last aforesaid, at the port of New York in the District of New York, to-wit, at the City of New York in the County of New York and at the ward aforesaid, by virtue of the said power

Page 16 U. S. 259

and authority, and in pursuance of the said instructions and directions so given as aforesaid to them, the said David Gelston and Peter A. Schenck, by the said President of the said United States, and not otherwise, seize, take, carry away, and detain the said ship or vessel called the American Eagle, with her tackle, apparel, and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, as forfeited to the use of the said United States, according to the form of the statute in such case made and provided, and the said David Gelston and Peter A. Schenck further say that the seizing, taking carrying away, and detaining of the said ship or vessel, with her tackle, apparel, and furniture and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, by the said David Gelston and Peter A. Schenck on 10 July, 1810, as aforesaid, is the same seizing, taking, carrying away and detaining of the said ship or vessel, with her tackle, apparel, and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, mentioned in the several counts in the said declaration of the said plaintiff, and not other or different. And this they, the said David Gelston and Peter A. Schenck, are ready to verify, wherefore they pray judgment if the said Goold Hoyt ought to

Page 16 U. S. 260

have or maintain his aforesaid action thereof against them, &c."

"3d. Plea."

"3. And for a further plea in this behalf as to the several trespasses mentioned in the first, second, third, fourth, and fifth counts in the declaration of the said plaintiff mentioned, to-wit, in taking and carrying away the goods and chattels of the said plaintiff mentioned in the first count in the said declaration of the said plaintiff, in taking and carrying away the goods and chattels of the said plaintiff, to-wit, a ship or vessel of the said plaintiff, called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, mentioned in the second count in the said declaration of the said plaintiff, in seizing, taking, carrying away damaging, spoiling, converting, and disposing to their own use the goods and chattels of the said plaintiff, to-wit, a ship or vessel of the said plaintiff, called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, mentioned in the third count in the said declaration of the said plaintiff; in seizing, taking, carrying away, keeping and detaining and converting and disposing to their own use a certain ship or vessel of the said plaintiff mentioned in the fourth count in the said declaration of the said plaintiff and in seizing and taking possession of and in taking and carrying from and out of the possession of the said

Page 16 U. S. 261

plaintiff, to-wit, a ship or vessel of the said plaintiff, called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, mentioned in the fifth count in the said declaration of the said plaintiff, above supposed to have been committed by the said David Gelston and Peter A. Schenk, they, the said David Gelston and Peter A. Schenk, by leave of the court here for the purpose first had and obtained, according to the form of the statute in such case made and provided, say that the said Goold Hoyt ought not to have or maintain his aforesaid action against them because they say that the said ship or vessel, called the American Eagle, with her tackle, apparel, and furniture, the five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff are the same and not other or different, and that the seizing, taking, carrying away, keeping, detaining, damaging, spoiling, converting, and disposing thereof to their own use, mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff are the same, and not other or different."

"And the said David Gelston and Peter A. Schenck further say that the ship or vessel mentioned in the fourth count in the said declaration of the said plaintiff is the same ship or vessel, called the American Eagle, mentioned in the second, third, and fifth counts

Page 16 U. S. 262

in the said declaration of the said plaintiff, and not other or different, and that the seizing, carrying away, keeping and detaining and converting and disposing thereof to their own use mentioned in the fourth count in the said declaration of the said plaintiff is the same seizing, taking, carrying away, keeping and detaining and converting and disposing thereof to their own use mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff, and not other or different."

"And the said David Gelston and Peter A. Schenck further say that the said ship or vessel called the American Eagle, with her tackle, apparel, and furniture, and the five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread mentioned in the second, third, and fifth counts in the said declaration of the said plaintiff are included in and are the only goods and chattels embraced by the general description of goods and chattels mentioned in the first count in the said declaration of the said plaintiff, and that the taking and carrying away thereof mentioned in the said first count in the said declaration of the said plaintiff is the same taking and carrying away thereof mentioned in the said second, third, and fifth counts in the said declaration of the said plaintiff, and not other or different, and that the several trespasses mentioned in the first, second, third, fourth, and fifth counts in the said declaration of the said plaintiff are the same trespass, and not other or different."

"And the said David Gelston and Peter A. Schenck further say

Page 16 U. S. 263

that before 10 July, 1810, to-wit, on 1 July in the year last aforesaid, at the port of New York in the District of New York, to-wit, at the City of New York, in the County of New York, and at the first ward of the said city, the said ship or vessel, called the American Eagle, with her tackle, apparel, and furniture, was attempted to be fitted out and armed, and that the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, were then and there procured for the equipment of the said vessel and were then and there on board of the said vessel as a part of her said equipment, with intent that the said ship or vessel, called the American Eagle, should be employed in the service of some foreign state to commit hostilities upon the subjects of another foreign state with which the United States was then at peace, contrary to the form of the statute in such case made and provided."

"And the President of the said United States, to-wit, James Madison, who was then President of the said United States, by virtue of the power and authority vested in him by the Constitution and laws of the said United States, did afterwards, to-wit, on 6 July in the year last aforesaid, at Washington, to-wit, at the City of New York, in the County of New York, and at the ward aforesaid, authorize, empower, instruct, and direct the said David Gelston and Peter A, Schenck to take possession of, and detain the said ship or vessel called the American Eagle, with her tackle, apparel

Page 16 U. S. 264

and furniture and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions and twenty hogsheads of ship bread, in order to the execution of the prohibitions and penalties of the act in such case made and provided."

"And the said David Gelston, and Peter A. Schenck further say that they did afterwards, to-wit, on 10 July in the year last aforesaid, at the port of New York, in the District of New York, to-wit, at the City of New York, in the County of New York, and at the ward aforesaid, by virtue of the said power and authority, and in pursuance of the said instructions and directions so given as aforesaid to them, the said David Gelston and Peter A. Schenck, by the said President of the said United States, and not otherwise, take possession of, and detain the said ship or vessel, called the American Eagle, with her tackle, apparel and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, in order to the execution of the prohibitions and penalties of the act in such case made and provided."

"And the said David Gelston and Peter A. Schenck further say that the taking possession of and detaining of the said ship or vessel, with her tackle, apparel, and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread by the said David Gelston and Peter A. Schenck on 10 July, 1810,

Page 16 U. S. 265

as aforesaid, is the same seizing, taking, carrying away, and detaining of the said ship or vessel, with her tackle apparel, and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread mentioned in the several counts in the said declaration of the said plaintiff, and not other or different."

"And this they, the said David Gelston and Peter A. Schenck, are ready to verify, wherefore they pray judgment if the said Goold Hoyt ought to have or maintain his aforesaid action thereof against them, &c."

"And to which the said foregoing pleas, was subjoined the following notice."

" SIR: Please to take notice that the defendants, at the trial of the above cause, will insist upon and give in evidence under the general issue above pleaded that the ship or vessel called the American Eagle, with her tackle, apparel, and furniture, before 10 July, 1810, to-wit, on 1 July in the year last aforesaid, at the port of New York, in the District of New York, to-wit, at the City of New York, in the County of New York, and at the first ward of the said city, was attempted to be fitted out and armed, and was fitted out and armed, and that the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread were procured for the equipment of the said vessel and were then and there on board of the said vessel as

Page 16 U. S. 266

a part of her said equipment, with intent that the said ship or vessel, called the American Eagle, should be employed in the service of a foreign prince or state, to-wit, of that part of the Island of St. Domingo which was then under the government of Petion, to cruise and commit hostilities upon the subjects, citizens, and property of another foreign prince or state with which the United States was then at peace, to-wit, of that part of the Island of St. Domingo which was then under the government of Christophe, contrary to the form of the statute in such case made and provided."

" And the said defendants will also insist upon and give in evidence under the said plea that the said ship or vessel, with her tackle, apparel, and furniture, on the day and year last aforesaid, at the port of New York, in the District of New York, to-wit, at the City of New York, in the County of New York, and at the ward aforesaid, was attempted to be fitted out and armed, and was fitted out and armed, and that the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, were procured for the equipment of the said vessel, and were then and there on board of the said vessel, as a part of her said equipment, with intent that the said ship or vessel should be employed in the service of some foreign prince or state, to cruise and commit hostilities upon the subjects, citizens, and property of some other foreign prince or state, with which the United States was then at peace, contrary to the form of the statute in such case made and provided. "

Page 16 U. S. 267

" And the said defendants will also insist upon, and give in evidence under the said plea that he, the said David Gelston, was collector, and that he, the said Peter A. Schenck, was surveyor of the customs for the District of the City of New York, on 10 July, 1810, and before that time, and that they have ever since continued to be collector and surveyor as aforesaid, and that they, the said David Gelston and Peter A. Schenck as collector and surveyor as aforesaid, and not otherwise, did, on the said 10 July in the year last aforesaid at the port of New York, in the District of New York, to-wit, at the City of New York, in the County of New York, and at the first ward of the said city, seize, take, and detain the ship or vessel, with her tackle, apparel, and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, according to the form of the statute in such case made and provided, and by virtue of the power and authority vested in them by the Constitution and laws of the United States. Dated this 11 March, 1813."

"And the said Goold Hoyt, to the said first plea, joined issue, and to the second and third pleas the said Goold Hoyt demurred as follows: "

" And as to the plea of the said David Gelston and Peter A. Schenck, by them first above pleaded, and whereof they have put themselves upon the country, the said Goold Hoyt doth the like, &c."

" And as to the pleas by the said David Gelston and

Page 16 U. S. 268

Peter A. Schenck, by them secondly and thirdly above pleaded in bar, the said Goold Hoyt saith, that the second and third pleas of the said David Gelston and Peter A. Schenck, or either of them, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are not sufficient in law to bar and preclude him, the said Goold Hoyt, from having and maintaining his action aforesaid, against the said David Gelston and Peter A. Schenck, and that he, the said Goold Hoyt, is not bound by the law of the land to answer the same, and this he is ready to verify; wherefore, for want of a sufficient plea in this behalf, the said Goold Hoyt prays judgment, and his damages by him sustained on occasion of the committing of the said trespasses, to be adjudged to him, &c."

"And the said David Gelston, and Peter A. Schenck thereupon joined in demurrer as follows: "

" And the said David Gelston and Peter A. Schenck say that their said pleas, by them secondly and thirdly above pleaded, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are sufficient in law to bar and preclude the said Goold Hoyt from having and maintaining his aforesaid action thereof against them, the said David Gelston and Peter A. Schenck, and that they, the said David Gelston and Peter A. Schenck, are ready to verify and prove the same, when, where, and in such manner as the said court shall direct, wherefore, inasmuch as the said Goold Hoyt has not answered the said second and third pleas, nor hitherto in any manner denied the same, the said David Gelston

Page 16 U. S. 269

and Peter A. Schenck, pray judgment and that the said Goold Hoyt may be barred from having or maintaining his aforesaid action thereof against them, the said David Gelston and Peter A. Schenck, &c."

"And afterwards the said demurrer was brought on to be argued before the said supreme court at the City Hall of the City of New York, and judgment was given against the said David Gelston and Peter A. Schenck upon the said demurrer."

"And afterwards, to-wit, at the sittings of nisi prius, held at the City Hall of the City of New York aforesaid, in and for the said city and county, on 15 November, 1815, before the Honorable Ambrose Spencer, Esq. one of the Justices of the Supreme Court of Judicature of the people of the State of New York, assigned to hold pleas in the said sittings, according to the form of the statute in such case made and provided, the aforesaid issue, so joined between the said parties as aforesaid, come on to be tried by a jury of the City and County of New York aforesaid for that purpose empanelled, that is to say, Walter Sawyer Edward Wade, William Prior, James McCready, Richard Loines, John Rodgers, Asher Marx, Benjamin Gomez, Samuel Milbanks, James E. Jennings, George Riker, and Jacob Latting, good and lawful men of the City and County of New York aforesaid, at which day came there as well the said Goold Hoyt as the said David Gelston and Peter A. Schenck, by their respective attorneys aforesaid, and the jurors of the jury, empanelled to

Page 16 U. S. 270

try the said issue, being called, also came, and were then and there, in due manner, chosen and sworn to try the same issue, and upon the trial of that issue, the counsel learned in the law for the said Goold Hoyt, to maintain and prove the said issue on their part, gave in evidence, that at the time of the seizure of the said ship American Eagle by the said David Gelston and Peter A. Schenck, she was in the actual, full, and peaceable possession of the said Goold Hoyt, and that, on the acquittal of the said vessel in the District Court of the United States for the District of New York, it was decreed that the said vessel should be restored to the said Goold Hoyt, the claimant of the said vessel, in the said district "

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court, and for that purpose the counsel of the said Goold Hoyt gave in evidence the proceedings in the said district court of the United States, by which it appeared that a libel had been filed in the name of the United States against the said ship American Eagle in which it was, among other things, alleged that the said ship had been fitted out and armed, and attempted to be fitted out and armed, and equipped and furnished with intent to be employed in the service of Petion against Christophe and in the service of that part of the Island of St. Domingo which was then under the government of Petion against that part of the said Island of St. Domingo which was then under the government of Christophe, contrary to the statute in such case made and provided, and that the said Goold Hoyt had filed an answer to the said libel, and a claim to the said vessel, in which the said Goold Hoyt had expressly denied the truth of

Page 16 U. S. 271

the allegations in the said libel, and it also appeared by the said proceedings, that in the month of April, 1811, an application had been made to the said district court by the said Goold Hoyt to have the said ship appraised and to have her delivered up to him on giving security for her appraised value, and it also appeared by the said proceedings that appraisers had been appointed by the said court and that they had appraised the said ship, her tackle, &c., at $35,000, and that the said appraisement had been filed, and had not been excepted to, and that the sureties offered by the said Goold Hoyt for the appraised value of the said ship had been accepted by the said court, and it also appeared, by the said proceedings that the said cause had been tried before the said district court and that the said libel had been dismissed, and that the said ship had been decreed to be restored to the said claimant and that a certificate of reasonable cause for the seizure of the said vessel had been denied. And the counsel of the said Goold Hoyt, to maintain and prove the said issue, did give in evidence that the value of the said ship, her tackle, apparel, and furniture, at the time of her seizure as aforesaid was $100,000, and did also give in evidence that the said Peter A. Schenck seized and took possession of the said ship by the written directions of the said David Gelston, but no other proof was offered by the said plaintiff, at that time of any right or title in the said plaintiff to the said vessel, and here the said plaintiff rested his cause.

Page 16 U. S. 272

"Whereupon the counsel for the defendants did, then and there, insist, before the said justice on the behalf of the said defendants that the said several matters so produced and given in evidence on the part of the plaintiff as aforesaid were insufficient, and ought not to be admitted or allowed as sufficient evidence to entitle the said plaintiff to a verdict, and the said counsel for the defendants did, then and there pray the said justice to pronounce the said matters, so produced and given in evidence for the said plaintiff, to be insufficient to entitle the said plaintiff to a verdict in the said cause, and to nonsuit the said plaintiff; but to this the counsel learned in the law, of the said plaintiff, objected, and did then and there insist before the said justice, that the same were sufficient, and ought to be admitted and allowed to be sufficient to entitle the said plaintiff to a verdict, and the said justice did then and there declare and deliver his opinion to the jury aforesaid, that the said several matters so produced, and given in evidence on the part of the said plaintiff, were sufficient to entitle the said plaintiff to a verdict, and that he ought not to be nonsuited, whereupon the said counsel for the defendants did, then and there, on the behalf of the said defendants, except to the aforesaid opinion of the said justice, and insisted that the said several matters, so produced and given in evidence, were not sufficient to entitle the said plaintiff to a verdict, and that he ought to be nonsuited."

"After the said motion for a nonsuit had been refused, and the opinion of the said justice had been excepted to as aforesaid, the counsel of the said

Page 16 U. S. 273

Goold Hoyt, did, in the progress of the trial, give in evidence, on the part of the said Goold Hoyt, that he purchased the said ship of James Gillespie, who had purchased her of John R. Livingston and Isaac Clason, the owners thereof, and that in pursuance of such purchase by the plaintiff, the said James Gillespie had delivered full and complete possession of the said ship, her tackle, &c., to the said plaintiff, before the taking thereof by the defendants."

"And the said motion for a nonsuit having been refused and the opinion of the said justice accepted to as aforesaid, the said counsel for the said defendants did thereupon, state to the said jury the nature and circumstances of the defendant's defense, and did then and there offer to prove and give in evidence, by way of defense or in mitigation or diminution of damages, that the said ship or vessel, called the American Eagle, with her tackle, apparel, and furniture, before 10 July, 1810, to-wit, on 1 July, in the year last aforesaid, at the port of New York, in the Southern District of New York, to-wit, at the City of New York, in the County of New York, and at the first ward of the said city, was attempted to be fitted out and armed, and was fitted out and armed, and that the said five hundred tons of stone ballast, one hundred hogshead of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, were procured for the equipment of the said vessel, and were then and there on board of the said vessel, as a part of her said equipment, with intent that the

Page 16 U. S. 274

said ship or vessel, called the American Eagle, should be employed in the service of that part of the Island of St. Domingo which was then under the government of Petion, to cruise and commit hostilities upon the subjects, citizens, and property of that part of the Island of St. Domingo which was then under the government of Christophe, contrary to the form of the statute in such case made and provided."

"And the said counsel of the said defendants did then and there offer to prove and give in evidence by way of defense or in mitigation or diminution of damages that he, the said David Gelston, was collector, and that he, the said Peter A. Schenck, was surveyor of the customs for the District of the City of New York on 10 July, 1810, and before that time, and afterwards continued to be collector and surveyor as aforesaid, and that they, the said David Gelston and Peter A. Schenck, as collector and surveyor as aforesaid, and not otherwise, did, on the said 10 July in the year last aforesaid, at the port of New York, in the Southern District of New York, to-wit, at the City of New York, in the County of New York, and at the first ward of the said city, seize, take, and detain the said ship or vessel with her tackle, apparel, and furniture, and the said five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship bread, according to the form of the statute in such case made and provided, and by virtue of the power and authority vested in them by the Constitution and

Page 16 U. S. 275

laws of the United States, and for such cause as is hereinbefore stated."

"And the said counsel of the said defendants did then and there insist before the said justice on the behalf of the said defendants that the said several matters, so offered to be proved and given in evidence on the part of the said defendants as aforesaid ought to be admitted and allowed to be proved and given in evidence in justification of the trespass charged against the said defendants, or in mitigation or diminution of the damages claimed by the plaintiff as aforesaid."

"And the said counsel for the said defendants, did, then and there, pray the said justice to admit and allow the said matters so offered to be proved and given in evidence, to be proved and given in evidence in justification of the trespass charged against the said defendants, or in mitigation or diminution of the damages claimed, by the plaintiff as aforesaid; but to this the counsel learned in the law, of the said plaintiff, objected, and did then and there insist before the said justice that the same ought not to be admitted, or allowed to be proved or given in evidence, in justification of the trespass charged against the said defendants, and that the same ought not to be admitted, or allowed to be proved or given in evidence, in mitigation or diminution of the damages claimed by the plaintiff as aforesaid, inasmuch as the counsel of the said Goold Hoyt admitted that the defendants had not been influenced by any malicious motives in making the said seizure, and that they had not acted with

Page 16 U. S. 276

any view or design of oppressing or injuring the plaintiff. And the said justice did, then and there, declare and deliver his opinion, and did then and there overrule the whole of the said evidence, so offered to be proved by the said defendants, and did declare it to be inadmissible in justification of the trespass charged against the said defendants, and after the admission so made by the counsel of the said Goold Hoyt, as aforesaid, did declare and deliver his opinion that the said evidence ought not to be received in mitigation or diminution of the said damages, as the said admission precluded the said plaintiff from claiming any damages against the defendants by way of punishment or smart money, and that after such admission the plaintiff could recover only the actual damages sustained, and with that direction left the same to the said jury, and the jury aforesaid, then and there gave their verdict for the said plaintiff for $107,369.43 damages, whereupon the said counsel for the said defendants did then and there, on the behalf of the said defendants, except to the aforesaid opinion of the said justice, and insisted that the said several matters so offered to be proved and given in evidence ought to have been admitted and given evidence in justification of the trespass charged against the said defendants, or in mitigation or diminution of the damages claimed by the plaintiff as aforesaid."

"And inasmuch as neither the said several matters so produced and given in evidence on the part of the said plaintiff, and by the counsel of the said defendants

Page 16 U. S. 277

objected to, as insufficient evidence to entitle the said plaintiff to a verdict as aforesaid, nor the said several matters so offered to be proved and given in evidence, on the part of the said defendants, in justification of the trespass charged against the said defendants, or in mitigation or diminution of the damages claimed by the plaintiff as aforesaid, appear by the record of the verdict aforesaid, the said counsel for the said defendants did, then and there, propose their exceptions to the opinions and decisions of the said justice, and requested him to put his seal to this bill of exceptions, containing the said several matters so produced and given in evidence on the part of the said plaintiff as aforesaid, and the said several matters so offered to be proved and given in evidence, on the part of the said defendants as aforesaid, according to the form of the statute in such case made and provided. And thereupon the said justice, at the request of the said counsel for the said defendants, did put his seal to this bill of exceptions, on the said 15 November, 1815, pursuant to the statute in such case made and provided."

"If either party shall require the proceedings in the district court to be set out more at length, then it is understood, that such proceedings shall be engrafted into the bill of exceptions, and form part thereof."

"AMBROSE SPENCER "

Page 16 U. S. 278

The bill of exceptions being carried before the supreme court of the State of New York, the exceptions were disallowed by the court. The cause was then carried to the Court of Errors of the state, where the judgment of the supreme court of the state was affirmed and the cause was brought to this Court in the manner before stated.

Page 16 U. S. 302

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