Penhallow v. Doan's Administrators - 3 U.S. 54 (1795)
U.S. Supreme Court
Penhallow v. Doan's Administrators, 3 U.S. 3 Dall. 54 54 (1795)
Penhallow v. Doan's Administrators
3 U.S. (3 Dall.) 54
Congress had power before the ratification of the Articles of Confederation, to establish courts of appeals for all prize causes, and the decision of the court of appeals is final against all proceedings in courts of admiralty erected by or under the authority of the separate states of the union.
Courts of appeal in cases of admiralty and maritime jurisdiction may, having all the matter in controversy before them, make such a decree as the inferior court, from which the case was removed, should have given.
The district courts of the United States having admiralty jurisdiction may sustain a libel to carry into effect the decree of the court of appeals, erected by Congress under the Articles of Confederation. A decree of a court of admiralty in rem is final and conclusive as to all the matters in controversy, and the grounds of the decree cannot be inquired into in another admiralty court on a libel to carry the decree into execution.
An appeal from the decree of a court of admiralty suspends the effect of the decree from which the appeal is taken.
The case was argued from the sixth to the seventeenth of February.
The case, reduced to an historical narrative by Judge Paterson in delivering his opinion, exhibits these features:
"This cause has been much obscured by the irregularity of the pleadings, which present a medley of procedure, partly according to the common and partly according to the civil law. We must endeavor to extract a state of the case from the record, documents, and acts which have been exhibited."
It appears, that 25 November, 1775, Congress passed a series of Resolutions respecting captures. These Resolutions are as follow:
"Whereas it appears from undoubted information that many vessels, which had cleared at the respective custom houses in these colonies, agreeable to the regulations established by acts of the British Parliament, have, in a lawless manner, without even the semblance of just authority, been seized by His Majesty's ships of war and carried into the harbor of Boston and other ports, where they have been rifled of their cargoes by order of His Majesty's naval and military officers there commanding without the said vessels' having been proceeded against by any form of trial and without the charge of having offended against any law."
"And whereas orders have been issued in His Majesty's name to the commanders of his ships of war to proceed as in the case of actual rebellion against such of the sea port towns and places being accessible to the King's ships, in which any troops shall be raised or military works erected,
under color of which said orders the commanders of His Majesty's said ships of war have already burned and destroyed the flourishing and populous town of Falmouth, and have fired upon and much injured several other towns within the United Colonies and dispersed at a late season of the year, hundreds of helpless women and children with a savage hope that those may perish under the approaching rigor's of the season, who may chance to escape destruction from fire and sword, a mode of warfare long exploded amongst civilized nations."
"And whereas the good people of these colonies, sensibly affected by the destruction of their property and other unprovoked injuries, have at last determined to prevent as much as possible a repetition thereof and to procure some reparation for the same, by fitting out armed vessels and ships of force, in the execution of which commendable designs it is possible that those who have not been instrumental in the unwarrantable violences above mentioned may suffer unless some laws be made to regulate and tribunals erected competent to determine the propriety of captures. Therefore resolved"
"1. That all such ships of war, frigates, sloops, cutters, and armed vessels as are or shall be employed in the present cruel and unjust war against the United Colonies and shall fall into the hands of or be taken by the inhabitants thereof be seized and forfeited to and for the purposes herein after mentioned."
"2. Resolved that all transport vessels in the same service, having on board any troops, arms, ammunition, clothing, provisions, military or naval stores of what kind soever, and all vessels to whomsoever belonging, that shall be employed in carrying provisions or other necessaries to the British army or armies or navy that now are or shall hereafter be within any of the United Colonies, or any goods, wares, or merchandise for the use of such fleet or army shall be liable to seizure, and with their cargoes shall be confiscated."
"3. That no master or commander of any vessel shall be entitled to cruise for or make prize of any vessel or cargo before he shall have obtained a commission from the Congress or from such person or persons as shall be for that purpose appointed in some one of the United Colonies."
"4. That it be and is hereby recommended to the several legislatures in the United Colonies as soon as possible to erect courts of justice or give jurisdiction to the courts now in being for the purpose of determining concerning the captures to be made as aforesaid and to provide that all trials in
such case be had by a jury under such qualifications as to the respective legislatures shall seem expedient."
"5. That all prosecutions shall be commenced in the court of that colony in which the captures shall be made, but if no such court be at that time erected in the said colony or if the capture be made on open sea, then the prosecution shall be in the court of such colony as the captor may find most convenient, provided that nothing contained in this resolution shall be construed so as to enable the captor to remove his prize from any colony competent to determine concerning the seizure after he shall have carried the vessel so seized within any harbor of the same."
"6. That in all cases an appeal shall be allowed to the Congress or such person or persons as it shall appoint for the trial of appeals, provided the appeal be demanded within five days after definitive sentence and such appeal be lodged with the Secretary of Congress within forty days afterwards, and provided the party appealing shall give security to prosecute the said appeal to effect, and in case of the death of the Secretary during the recess of Congress, then the said appeal to be lodged in Congress within twenty days after the meeting thereof."
"7. That when any vessel or vessels shall be fitted out at the expense of any private person or persons, then the captures made shall be to the use of the owner or owners of the said vessel or vessels; that where the vessels employed in the capture shall be fitted out at the expense of any of the united colonies, then one-third of the prize taken shall be to the use of the captors and the remaining two-thirds to the use of the said colony, and where the vessels so employed shall be fitted out at the continental charge, then one-third shall go to the captors and the remaining two-thirds to the use of the united colonies, provided nevertheless that if the capture be a vessel of war, then the captors shall be entitled to one-half of the value, and the remainder shall go to the colony or continent as the case may be, the necessary charges of condemnation of all prizes being deducted before distribution made."
That on 23 March, 1776, Congress resolved that the inhabitants of these colonies be permitted to fit out armed vessels to cruise on the enemies of the united colonies.
That on 2 April, 1776, Congress agreed on the form of a commission to commanders of private ships of war; that the commission run in the name of the delegates of the united colonies of New Hampshire &c., and was signed by the President of Congress.
"That on 3 July, 1776, the Legislature of New Hampshire
passed an act for the trial of captures, of which the part material in the present controversy is as follows: "
"And be it further enacted that there shall be erected and constantly held in the Town of Portsmouth or some town or place adjacent in the County of Rockingham a court of justice by the name of the Court Maritime by such able and discreet person as shall be appointed and commissioned by the council and assembly for that purpose, whose business it shall be to take cognizance and try the justice of any capture or captures of any vessel or vessels that have been, may, or shall be taken by any person or persons whomsoever and brought into this colony or any recaptures that have or shall be taken and brought thereinto."
"And be it further enacted that any person or persons who have been or shall be concerned in the taking and bringing into this colony any vessel or vessels employed or offending or being the property as aforesaid shall jointly or either of them by themselves or by their attorneys, or agents, within twenty days after being possessed of the same in this colony, file before the said judge a libel in writing, therein giving a full and ample account of the time, manner, and cause of the taking such vessel or vessels. But in case of any such vessel or vessels already brought in as aforesaid, then such libel shall be filed within twenty days next after the passing of this act, and at the time of filing such libel shall also be filed all papers on board such vessel or vessels, to the intent that the jury may have the benefit of the evidence therefrom arising. And the judge shall as soon as may be appoint a day to try by a jury the justice of the capture of such vessel or vessels, with their appurtenances and cargoes, and he is hereby authorized and empowered to try the same. And the same judge shall cause a notification thereof, and the name, if known, and description of the vessel so brought in, with the day set for the trial thereon, to be advertised in some newspapers printed in the said colony (if any such paper there be) twenty days before the time of the trial, and for want of such paper, then to cause the same notification to be affixed on the doors of the Town House, in said Portsmouth to the intent that the owner of such vessel, or any persons concerned, may appear and show cause (if any they have) why such vessel, with her cargo and appurtenances, should not be condemned as aforesaid. And the said judge shall, seven days before the day set and appointed for the trial of such vessel or vessels, issue his warrant to any constable or constables within the county aforesaid commanding them or either of them to assemble the inhabitants of their towns respectively and to draw out of the box, in manner provided for drawing jurors, to serve at the Superior
Court of Judicature so many good and lawful men as the said judge shall order, not less than twelve nor exceeding twenty-four, and the constable or constables shall, as soon as may be, give any person or persons so drawn to serve on the jury in said court due notice thereof, and shall make due return of his doings therein to the said judge, at or before the day set and appointed for the trial."
"And the said jurors shall be held to serve on the trial of all such vessels as shall have been libeled before the said judge, and the time of their trial, published, at the time said jurors are drawn, unless the judge shall see cause to discharge them, or either of them before, and if seven of the jurors shall appear and there shall not be enough to complete the number of twelve (which shall be a panel) or if there shall be a legal challenge to any of them, so that there shall be seven, and not a panel, it shall and may be lawful for the judge to order his clerk, the sheriff, or other proper officer attending said court to fill up the jury with good and lawful men present, and the said jury when so filled up and empanelled shall be sworn to return a true verdict on any bill, claim, or memorial which shall be committed to them according to law and evidence, and if the jury shall find that any vessel or vessels against which a bill or libel is committed to them have been offending, used, employed or improved as aforesaid, or are the property of any inhabitants of Great Britain as aforesaid, they shall return their verdict thereof to the said judge, and he shall thereupon condemn such vessel or vessels, with their cargoes and appurtenances and shall order them to be disposed of as by law is provided, and if the jury shall return a special verdict, therein setting forth certain facts relative to such vessel or vessels (a bill against which is committed to them) and it shall appear to the said judge by said verdict that such vessel or vessels have been infesting the seacoast of America or navigation thereof, or that such vessels have been employed, used, improved, or offending, or are the property of any inhabitant or inhabitants of Great Britain as aforesaid, he, the said judge, shall condemn such vessel or vessels and decree them to be sold, with their cargoes and appurtenances, at public vendue, and shall also order the charges of said trial and condemnation, to be paid out of the money which such vessel and cargo, with her appurtenances, shall sell for to the officers of the court according to the table of fees last established by law of this colony, and shall order the residue thereof to be delivered to the captors, their agents, or attorneys for the use and benefit of such captors and others concerned therein, and if two or more vessels (the commanders whereof shall be properly commissioned) shall jointly take such vessel, the money which she and her cargo shall sell for (after payment of charges as aforesaid) shall
be divided between the captors in proportion to their men. And the said judge is hereby authorized to make out his precept, under his hand and seal, directed to the sheriff of the county aforesaid (or if thereto requested by the captors or agents to any other person to be appointed by the said judge) to sell such vessel and appurtenances and cargo at public vendue, and such sheriff or other person after deducting his own charges for the same, to pay and deliver the residue according to the decree of the said judge."
"And be it enacted by the authority aforesaid that any person or persons claiming the whole or any part or share, either as owner or captor of any such vessel or vessels against which a libel is so filed, may jointly or by themselves or by their attorneys or agents, five days before the day set and appointed for the trial of such vessel or vessels, file their claim before the said judge, which claim shall be committed to the jury, with the libel, which is first filed, and the jury shall thereupon determine and return its verdict, of what part or share such claimant or claimants shall have of the capture or captures, and every person or persons who shall neglect to file his or their claim in the manner as aforesaid shall be forever barred therefrom."
"And be it further enacted by the authority aforesaid that every vessel which shall be taken and brought into this colony by the armed vessels of any of the united colonies of America and shall be condemned as aforesaid, the proceeds of such vessels and cargoes shall go and be one-third part to the use of the captors and the other two-thirds, to the use of the colony at whose charge, such armed vessel was fitted out."
"And where any vessel or vessels shall be taken by the fleet and army of the united colonies and brought into this colony and condemned as aforesaid, the said judge shall distribute and dispose of the said vessels and cargoes according to the resolves and orders of the American Congress."
"And whereas the honorable Continental Congress has recommended that in certain cases an appeal should be granted from the court aforesaid."
"Be it therefore enacted that from all judgments or decrees hereafter to be given in the said Court Maritime on the capture of any vessel, appurtenances, or cargoes where such vessel is taken or shall be taken by any armed vessel fitted out at the charge of the united colonies, an appeal shall be allowed to the Continental Congress or to such person or persons as they already have, or shall hereafter appoint for the trials of appeals, provided the appeal be demanded within five days after definitive sentence given, and such appeal shall be lodged
with the Secretary of the Congress within forty days afterwards, and provided the party appealing shall give security to prosecute said appeal with effect, and in case of the death of the Secretary during the recess of the Congress, the said appeal shall be lodged in Congress within twenty days after the next meeting thereof, and that from the judgment, decrees, or sentence of the said court on the capture of any vessel or cargo which have been or shall hereafter be brought into this colony by any person or persons, excepting those who are in the service of the united colonies, an appeal shall be allowed to the Superior Court of Judicature which shall next be held in the county aforesaid."
"And whereas no provision has been made by any of the said resolves for an appeal from the sentence or decree of the said judge where the caption of any such vessel or vessels may be made by a vessel in the service of the united colonies and of any particular colony or person together,"
"Therefore be it enacted by the authority aforesaid that in such cases the appeal shall be allowed to the then next superior court as aforesaid, provided the appellant shall enter into bonds with sufficient sureties to prosecute his appeal with effect. And such superior court, to which the appeal shall be shall take cognizance thereof in the same manner as if the appeal was from the inferior court of common pleas, and shall condemn or acquit such vessel or vessels, their cargoes, and appurtenances, and in the sale, and disposition of them proceed according to this act. And the appellant shall pay the court and jury such fees as are allowed by law in civil actions."
That on the 30 January, 1777, Congress resolved that a standing committee, to consist of five members be appointed to hear and determine upon appeals brought against sentences passed on libels in the courts of admiralty in the respective states.
That Joshua Stackpole, a citizen of New Hampshire, commander of the armed brigantine called the McClary, acting under the commission and authority of Congress, did, in the month of October, 1777, on the high seas, capture the brigantine Susanna as lawful prize.
That John Penhallow, Joshua Wentworth, Ammi R. Cutter, Nathaniel Folsom, Samuel Sherburne, Thomas Martin Moses Woodward, Neil McIntire, George Turner, Richard Champney, and Robert Furness, all citizens of New Hampshire, were owners of the brigantine McClary.
That George Wentworth was agent for the captors.
That, on 11 November 1777, a libel was exhibited to the Maritime Court of New Hampshire in the names of John
Penhallow and Jacob Treadwell in behalf of the owners of the McClary and of George Wentworth, agent for the captors, against the Susanna and her cargo, to which claims were put in by Elisha Doane, Isaiah Doane, and James Shepherd, citizens of Massachusetts.
That on 16 December, 1777, a trial was had before the said court, when the jury found a verdict in favor of the libellants, whereupon judgment was rendered that the Susanna, her cargo &c., should be forfeited and deemed lawful prize, and the same were thereby ordered to be distributed according to law.
That an appeal to Congress was in due time demanded, but refused by the said court because it was contrary to the law of the state.
That then the said claimants prayed an appeal to the Superior Court of New Hampshire, which was granted.
That on the first Tuesday of September, 1778, the Superior Court of New Hampshire proceeded to the trial of the said appeal, when the jury found in favor of the libellants; that thereupon the court gave judgment that the Susanna, with her goods, claimed by Elisha Doane, Isaiah Doane, and James Shepherd, were forfeited to the libellants, and the same were ordered to be sold at public vendue for their use and benefit, and that the proceeds thereof, after deducting the costs of suit and charges of sale, be paid to John Penhallow and Jacob Treadwell, agents for the owners, and to George Wentworth, agent for the captors, to be by them paid and distributed according to law.
That the claimants did in due time demand an appeal from the said sentence to Congress, and did also tender sufficient security or caution to prosecute the said appeal to effect, and that the same was lodged in Congress within forty days after the definitive sentence was pronounced in the Superior Court of New Hampshire.
That on 9 October, 1778, a petition from Elisha Doane was read in Congress, accompanied with the proceedings of a court of admiralty for the State of New Hampshire on the libel Treadwell and Penhallow v. Brig Susanna, praying, that he may be allowed an appeal to Congress, whereupon it was ordered that the same be referred to the committee on appeals. Fourth Journal of Congress 586.
That on 26 June, 1779, the commissioners of appeal or the Court of Commissioners gave their opinion that they had jurisdiction of the cause.
That the Articles of Confederation bear date 9 July, 1778, and were ratified by all the states on 1 March, 1781.
That by these articles, the United States was vested with the sole and exclusive power of establishing courts for receiving and determining finally appeals in all cases of capture.
That such a court was established by the style of "The Court of Appeals in Cases of Capture." By the commission, the judges were "to hear, try, and determine all appeals from the courts of admiralty in the states respectively, in cases of capture." 6th Journal of Congress, pp. 14, 21, 75.
That on 24 May, 1780, Congress resolved
"That all matters respecting appeals in cases of capture now depending before Congress or the Commissioners of Appeals, consisting of members of Congress, be referred to the newly erected Court of Appeals, to be there adjudged and determined according to law."
That in the month of September, 1783, the Court of Appeals, before whom appeared the parties by their advocates, did, after a full hearing and solemn argument, finally adjudge and decree that the sentences or decrees passed by the Inferior and Superior Courts of Judicature of New Hampshire, so far as the same respected Elisha Doane, Isaiah Doane, and James Shepherd, should be revoked, reversed, and annulled, and that the property specified in their claims should be restored, and that the parties each pay their own costs on the said appeal.
Here the cause rested till the adoption of the existing Constitution of the United States, except an ineffectual struggle before Congress on the part of New Hampshire and an unavailing experiment at common law to obtain redress on the part of the appellants. After the organization of the judiciary under the present government, the representatives of Elisha Doane, who was one of the appellants, exhibited a libel in the District Court of New Hampshire which was legally transferred to the circuit court against John Penhallow, Joshua Wentworth, Ammi R. Cutter, Nathaniel Folsom, Samuel Sherburne, Thomas Martin Moses Woodward, Neil McIntire, George Turner, Richard Champley, Robert Furness & George Wentworth.
This libel, after setting forth the proceedings in the different courts, states that the brigantine Susanna, with her tackle, furniture, apparel, and cargo and also the monies arising from the sales thereof, came, after the capture, to the hands and possession of Joshua Wentworth, and George Wentworth, whereby they became liable for the same, together with the captors and owners. That after the death of Elisha Doane, letters of administration of the personal estate of the said Elisha were granted to Anna Doane, his widow, and Isaiah Doane, and that the widow afterwards intermarried with David Stoddard Greenough. The libellants pray process against the respondents
to show cause why the decree of the Court of Appeals should not be carried into execution, and they also pray that right and justice may be done in the premises and that they may recover such damages as they have sustained by reason of the taking of the Susanna.
The respondents, protesting, that they never were owners of the McClary, and that they have none of the effects of the Susanna, nor her cargo in their possession, say that the Susanna was in the custody of the marshal and, upon the final decree of the Superior Court of New Hampshire, sold for the benefit of the owners and mariners of the McClary, and distributed among them according to law; that the decision of the said court was final; that no other court ever had or hath or ever can have power to revoke, reverse, and annul the said decree, and, in a subsequent part of the pleadings, that the District Court of New Hampshire hath no authority to carry the decree of the Court of Appeals into execution or to give damages.
To this sort of plea and answer, neither and yet both, the libellants reply that the matters contained in their libel are just and true, and that they are ready to verify and prove the same; that the matters and things alleged by the respondents are false and untrue; that the Court of Commissioners and Court of Appeals were duly constituted and had jurisdiction of the subject matter; that no other court hath or can have authority to draw into question the legality of their decisions, and that the District Court of New Hampshire hath jurisdiction.
I have extracted and consolidated the material parts of the libel, plea, answer, replication, rejoinder, surrejoinder, etc., if they may be so termed, without detailing the allegations of the parties as they arise in the course of procedure.
Upon these pleadings, the parties went to a hearing before the Circuit Court of New Hampshire, which, after full consideration, decreed that the respondents should pay to the libellants their damages and costs occasioned by their not complying with the decree of the Court of Appeals, the quantum of which to be ascertained by commissioners. This interlocutory sentence was pronounced 24 October, 1793.
The commissioners reported, that the Susanna, her cargo, etc. were, on 2 October, 1778, being the assumed time of sale, worth Ł5,895 14s. 10p.
That they calculated thereon sixteen years interest, viz., from 2 October 1778, to 2 October 1794, amounting to Ł5,659 17s. 4p.
On this report's being affirmed, the circuit court pronounced its definitive sentence on 24 October, 1794, that the libellants recover against the respondents the sum of $38,518.69 damages and $154.30 costs. The respondents, conceiving themselves aggrieved, have removed the cause before this Court for revision.
The record being returned, the plaintiff in error, on 2 February, 1798, assigned the following errors:
"To the Chief Justice and the Associate Justices of the Supreme Court of the United States, to be holden at the City of Philadelphia on the first Monday of February, 1795, John Penhallow, Joshua Wentworth, Ammi Ruhammah Cutter, Nathaniel Fulsom, Samuel Sherburne, Sr. Thomas Martin Moses Woodward, Neil McIntire, George Turner, Richard Champney, Robert Furness, and George Wentworth, plaintiffs in error, against David Stoddart Grenough and Anna his wife and Isaiah Doane, Administrators of the estate of Elisha Doane, deceased, defendants."
"Humbly show that in the record and process aforesaid, hereto annexed, and in passing the final decree, it is manifestly erred in this, viz., that whereas it was decreed in favor of the said David Stoddart Grenough, and Anna his wife, and Isaiah Doane, the said decree ought to have been in favor of the said John Penhallow and others, the plaintiffs, and for other and further errors they assign the following, viz.,"
"Firstly. That by said decree it was ordered that the said John Penhallow and others, plaintiffs, be condemned in damages for their not performing a certain decree of a court claiming appellate jurisdiction in prize causes, held in the City of Philadelphia on 17 September, 1783, when in fact the said last mentioned court had no jurisdiction, power, or authority whatever by law to make and pass the said decree, and that the said decree was illegal and a nullity."
"Secondly. That there is also manifest error in this, viz., that if the said last mentioned court had at the time of their passing said decree appellate jurisdiction of said cause, yet said decree was altogether erroneous and impossible to be performed or executed because (as by the said Greenough's and others own showing in their libel aforesaid) the said Elisha Doane was, at the time of making and passing the said decree, viz., on 17 September, 1783, and long before that time, dead, when, by the same decree, it is ordered that restoration of said property be made to said Elisha Doane."
"Thirdly. There is also manifest error in this, viz., that said cause was not brought before Congress or the commissioners
by it appointed to hear and try appeals in prize causes according to the resolve of Congress, but repugnant thereto, viz., by way of complaint, and that no appeal from the said decree of said court of New Hampshire was allowed by the same court or by Congress."
"Fourthly. There is also manifest error in this viz., that in and by the said libel upon which the decree aforesaid in said circuit court is made, damages for not performing the decree of said Court of Appeals are not prayed for, wherefore the said circuit court ought not to have decreed or condemned the plaintiffs in damages as is done by said final decree."
"Fifthly. There is also manifest error in this, viz., that said final decree of said circuit court was not made upon a due trial and examination of the merits of the capture of the said Brigantine Susanna, her tackle, apparel and furniture, and of the goods, wares, and merchandises, and of the evidence or proofs which might have been adduced by the plaintiffs in error if such trial had been had. But the decree of the Court of Appeals was received and admitted as the only evidence of the right of claim of the said Grenough and others, the libellants, to the said Brigantine, her tackle, apparel and furniture, and of the said goods, wares, and merchandises condemned, and of the illegality of the capture and condemnation aforementioned in said libel, which is contrary to the usage and customs of admiralty Maritime and prize courts and altogether unwarranted by law."
"Sixthly. There is manifest error also in this, viz., that by the showing of the said libellants, the monies arising from the sale of said brigantine and cargo, etc., were paid to the said Joshua Wentworth and George Wentworth as agents, to be distributed according to law, viz., one-half to the owners of the said privateer, McClary, and the other to the captors, viz., to the officers and seamen on board, which were distributed accordingly. Whereas in fact by said final decree, they, the plaintiffs in error and Joshua and George as agents and the other plaintiffs as owners, are made liable and condemned in full damages for the whole value of said brigantine, her tackle, apparel, and furniture and of said goods, wares and merchandises, which is altogether illegal."
"Seventhly. There is also manifest error in this, viz., that it doth not appear by the copy of the record of said Court of Appeals filed and used in this cause how the same cause in which that court decreed as aforesaid, came before said court or was legally instituted or had day therein at the time of passing said decree."
"Eighthly. There is manifest error in this also, viz., that said circuit court, in passing said final decree and in all the
proceedings in the same, acted and proceeded as a court of admiralty when as such, they by law, had no jurisdiction of said cause and could not legally take cognizance thereof."
"Wherefore, for these and other errors in the record and process and final decree aforesaid of the said circuit court, the said plaintiffs in error pray that the final decree aforesaid of the said circuit court may be reversed, annulled, and held to be altogether void, and they restored to all things which they have lost."
"JOHN S. SHERBURNE"
The defendants replied in nullo est erratum, and thereupon issue was joined.