TAXIER v. SWEET
2 U.S. 81

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U.S. Supreme Court

TAXIER v. SWEET, 2 U.S. 81 (1766)

2 U.S. 81 (Dall.)

Taxier, et. al.
v.
Sweet, et. al.

Supreme Court of Pennsylvania

September Term, 1766

The plaintiff brought an action of Trover, against the defendants, for a vessel and cargo, returnable to the Common Pleas of June term, 1769. The declaration recited, that the plaintiffs were possessed of the vessel and cargo, to wit, at Philadelphia County, the 31st of March, 1762; that they casually lost them; that the said 31st of March, they came to the possession of the defendants by finding; and that nevertheless the defendants, knowing the goods to belong to the plaintiffs, did not deliver them, &c. but afterwards, on the same day and year, converted them to their own use, at Philadelphia County, &c.

The action being removed into this Court, was referred at April term, 1771, and the referrees reported L 2,900 to be due to the plaintiffs, subject to the opinion of the Court, on the point of law arising from the following facts.

The defendants, Samuel Sweet, commander of a privateer, Abraham Whipple, James Potter, and William Davis, commanders of vessels with Letters of Marque, did forcibly take on the high seas near Monte Christi, in the Island of Hispaniola, in the West-Indies, (where the vessel was lying at anchor) the ship called the Maria Francina, with her cargo, being the property of the plaintiffs, and carried her with her cargo into Rhode Island; at which place she and her cargo were condemned as prize and sold, as appeared by the proceedings of the Court of Vice Admiralty there. But on an appeal to the Court of Lord Commissioners of appeals, they, by their final decree, reversed the sentence of condemnation, as appeared by a certificate of the proceedings of that tribunal.

The question to be decided, on the preceding state of the case, was whether an action at common law lies for the plaintiffs

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as now brought? And it was twice argued by Waln, for the defendants, and by Dickinson, for the plaintiffs.

For the Defendants. The Courts of Common Law have a jurisdiction over all matters of dispute, which begin on the land; but where the dispute, or cause of action, arises at sea, the Admiralty has the sole cognizance, and the Courts of Common Law have no right to interfere. Thus, if an action is brought at Common Law for a taking, it is a good bar to plead that the taking was on the high seas; and even supposing the conversion was on land, yet that is coupled with the original taking, and draws the cognizance to the Admiralty. It is admitted, that if the plaintiffs were without a remedy expressly given by law, the Judges would provide some remedy to redress the injury which has been sustained: But where the law prescribes a particular mode of redress, the Judges are not at liberty to invent and allow a new one. The legal appropriate methods of redress in this case, are either by writ of restitution, founded on the reversal of the sentence of the Vice Admiralty of Rhode Island, or by suit upon the stipulations which were taken in that Court. No action like the present, has ever been instituted; which, according to Littleton, is a good argument that no such action can be maintained.

But waving, for a moment, the question of jurisdiction, the action of Trover, is not the proper action: It should be a special action on the case, setting forth all the particular circumstances of the transaction. For, in Trover three points are essential to be proved: 1st. The plaintiff's property; 2ndly. A possession in the defendant; and 3rdly. A conversion by the defendant to his own use. Now, the plaintiff's property was unquestionably altered; and, in law, or fact, they had no property in the vessel or cargo, at the time the writ was issued; both having been sold, as perishable goods, under the sentence of the Court of Admiralty; and, consequently, all the property of the plaintiffs (without which they cannot maintain Trover) was completely divested. Nor were the vessel and cargo ever converted to the use of the defendants: They seized them in the execution of their duty as officers; they pursued the legal steps to get them condemned; and while the cause was in suit, the property was in custodia legis. But even supposing that a forcible taking might be construed into a conversion (which, however, is denied in Bundbury's Reports,) yet still the action fails; for some of the Captains, being at a distance when the seizure was made, were not parties to the force, nor, consequently, to the constructive conversion, and, therefore, ought not to have been joined as defendants.

When, it is to be enquired, did the right to bring this action accrue? Did it accrue at the time of the capture? No: Because

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prize, or no prize, is only determinable in the Admiralty. Carth. 475. Comb. Did it accrue after the sentence in the Court of Admiralty of Rhode Island? No: Because by that sentence it was adjudged that the plaintiffs had no right to the vessel, or cargo. Did it accrue after the sentence was reversed? No: Because the personal action had been suspended, and must always be so. There is a great distinction between judgments vacated, and reversed by writ of Error: If vacated, the case is in statu quo; but not if they are reversed. A reversal on an appeal is similar to a reversal on a writ of Error; it does not restore matters to the state, in which they were at first; it has no retrospective operation. In this case, then, there was a supension of action. While the sentence of the Admiralty Court of Rhode Island was in force, the action would not lie; and, consequently, there was an intermediate period between the time of committing the injury complained of, and the present time, when the action was suspended; a suspension which has not and cannot be cured by any relation to the reversal of the sentence; for, a personal action once suspended is always so.

Besides the cases already referred to, the following were cited, in the course of the argument for the defendants: 1 Sid. 320. 367. Carth. 398. 1 Bac. Abr. 625. 2 Sand. 259. Cro. E. 685. 4 Co. 141. Comb. 444. 8 Co. 143. Moor. 753. 2 L. Raym. 925. 1 Lev. 243. 95. Rast. 303. Hob. 10. Cro. C. 173. Litt. Arg. 1 Sid. 124. Vaugh. 27. Carth. 32. 2 Litt. Pr. Reg. Vin. Ev. 95. Salk. 188. Cro. J. 698. Bunb.

For the Plaintiffs: The admiralty has not the sole power of determining any injury whatever, arising on the high-sea: Its authority is merely derivative, from the sufferance and permission of the Court of common law, whose jurisdiction is unbounded; and includes an original right to determine matters arising on the high-sea; nor does the allowance made to the Admiralty, impair that jurisdiction. 3 Bl. C. 87. Ld. Raym. 272. Thus though the Admiralty is permitted to determine pleas for mariners wages; yet if the contract be under seal, the cognizance belongs to the Courts of common law alone. Salk. 31.: And as the question of damages does not relate to maritime affairs, it may surely be as properly and as well determined at common law, as contracts under seal. There are innumerable authorities to show, that the Courts of common law maintain a constant controul over the Courts of civil law jurisdiction. They have obliged an Ecclesiastical Court to admit the proof of a testament by one witness. Salk. 547: And when the Lord Admiral stated it as a grievance, that the common law Courts encroached on the Admiralty jurisdiction, by a fiction supposing the matters to be done on land, the Judges in their answers,

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take no notice of the fiction, but admit the Admiralty jurisdiction of matters arising at sea. 4 Inst. 134. 5. Ridley. 172. Zouch. 129. But the truth is, that all transitory actions are triable any where. 4 Inst. 140. 213. If a man cuts trees in Ireland, and then goes into England, Trover lies against him. The action would appear to be local in such a case, yet such is the effect of the law's desire that redress is given everywhere. 9 Mod. 322. Salk. 290. Cro. Car. 242. The adverse counsel, indeed, has not been able to discover any thing like a similar plea to the jurisdiction, except in the Statham case, 4 Inst. 141; which, however, is not a plea to the jurisdiction; but a plea in bar; a plea in justification of the trespass: and in Godbolt 386. it appears that the Statham case was considered as proving, that the Courts of common law had jurisdiction of matters arising at sea. In the instance of a Spaniard having taken an English vessel, which was retaken before the Spaniard got into port, the common law would not concede jurisdiction to the Admiralty; and granted a prohibition, because the property might be brought in question. 2 Brownl. 11. 29. Carth. 367. So in an action of trespass, the defendant pleaded a capture and condemnation in the Admiralty; but the Court gave judgment for the plaintiff, because the defendant did not show what was the cause of the capture. Show. 6. 7. Prize, or no prize, is not the question: That question has been determined already; and if the Courts of common law will pay a regard to the sentence of condemnation in a Court of Admiralty, when that sentence is reversed, they ought equally to respect the decree of reversal.

But the Court can only be desirous to ascertain that the present action is well brought. Detinue and Replevin are actions in affirmance of property; but in Trespass and Trover, on the contrary, the Plaintiff waves the property, and demands nothing more than damages. Sid. 171. Cro. J. 50. Trover is never intended to recover the specific article. It lies, therefore, for money not in a bag, though Detinue cannot be brought in such case. Noy's Rep. 12. Cro. C. 89. 1 Roll. Abr. 5. pl. 1. and if the nature of the thing is altered it is evidence of the conversion; but it is not good evidence in Detinue, where the demand of the thing is in specie, and where no conversion is alledged. Gilb. L. E. 261. There are cases, indeed, in which Detinue could afford no adequate remedy; as in the case of drawing out part of the wine out of a pipe, and filling it up with water. 1 Stra. 576. A forcible taking is, likewise, evidence of a conversion. Gilb. L. E. 264. Cro. E. 824. But while the sentence of condemnation was in force neither Trespass nor Trover would lie. Raym. 336.

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It is, likewise, to be considered, that though a sale under the sentence of a Court of Admiralty, like a sale in market overt, alters the property; yet in both cases, the wrong-doer remains liable, or he would be suffered to take advantage of his own wrong: And even after a sale has been made, if the goods come again into the possession of the original owner, his right of property will revive. 2 Inst. 713. There are, however, many instances of pleading a sale in market overt, by the innocent purchaser, but not a single instance of such pleading in the case of the wrong-doer.

From the sentence of condemnation, therefore, to the sentence of reversal, it is but one transaction; and the issue of it places the parties in statu quo. A Court of Admiralty is not a Court of Record; and, consequently, a writ of Error will not lie upon its decrees: But this does not justify the distinction between judgments vacated and reversed; and the reversal in this case is similar to vacating. See. 4 Inst. 340. 8 Co. 135.5 Co. 76. Salk. 32. That a relation will make a nullity between the parties themselves, but not as to strangers, is a common rule. L. Raym. 521. The whole doctrine of relations, indeed, is favourable to the plaintiffs: 18 Vin. 293. 291. Stra. 996. Burr. 20. And, correctly speaking, their property has never been in suspension, but in custodia legis.

After the argument, The Court were divided in opinion on the question- whether the action of Trover was proper? Two of the Judges deciding in the affirmative, against the other: But they concurred, clearly and unanimously, on the point of jurisdiction; and, accordingly, gave

Judgment for the plaintiffs.*

Footnotes

[Footnote *] Since the Revolution, however, the nature and extent of the Admiralty jurisdiction, has been more strictly investigated and defined, both in the State Courts, and the Courts of the United States. See 1. Dall. Rep. 49. 95. 180. 218. and several cases in the sequel of this volume.

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