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THE COLLECTOR, 19 U. S. 194 (1821)

U.S. Supreme Court

The Collector, 19 U.S. 6 Wheat. 194 194 (1821)

The Collector

19 U.S. (6 Wheat.) 194


In all proceedings in rem on an appeal, the property follows the cause into the circuit court and is subject to the disposition of that court. But it does not follow the cause into the Supreme Court on an appeal to that Court.

After an appeal from the district to the circuit court, the former court can make no order respecting the property, whether it has been sold and the proceeds paid into court or whether it remains specifically, or its proceeds remain, in the hands of the marshal.

It is a great irregularity for the marshal to keep the property or the proceeds thereof in his own hands or to distribute the same among the parties entitled, without a special order from the court, but such an irregularity may be cured by the assent and ratification of all the parties interested if there be no mala fides.

The facts of this case were as follow:

In the year 1807, the schooner Collector and cargo were libeled in the District Court of the District of Maryland, as forfeited under the act of Congress

Page 19 U. S. 195

prohibiting commercial intercourse with certain ports of St. Domingo.

John Wilmot, the present petitioner and libellant, and the house of Tag art & Caldwell, claimed the whole property.

Pending the proceedings in the district court, the vessel and cargo were sold under an order to "bring in the proceeds, subject to the future disposition thereof." The money, notwithstanding this order, was never paid to the clerk, nor was it ever deposited by him in any court, and the court never afterwards made any order respecting it.

The property was condemned in the district and circuit courts, which latter decree was reversed by the Supreme Court in the Term of February, 1809, and the property libeled ordered to be restored. The mandate of the Supreme Court was filed below 11 May following. The present libel and petition was filed in the district court 8 June, 1816, when a decree passed dismissing the same, which was afterwards affirmed by the circuit court, from whose sentence this appeal was taken.

The object of the present appeal was to obtain the benefit of the decree of the Supreme Court -- that is, restitution of the property, according to the rights of the respective claimants, the appellant insisting on one-half of the proceeds of vessel and cargo, as joint owner, and also upon a lien on the other half as ship's husband for advances made beyond his proportion of the outfits of the voyage, as well as for expenses in defending the vessel and cargo against the information which had been filed against them,

Page 19 U. S. 196

and for this purpose prayed that the marshal might be ordered to bring in the proceeds, according to the interlocutory decree, and that the same might be restored, pursuant to the decree of the Supreme Court, preserving to the parties their respective rights, liens, &c., concluding with a general prayer for relief.

From the petition of the appellant, the answer of the marshal, and the proofs in the cause it appeared that the marshal, although he sold the schooner and her cargo, did not in fact bring the money into court. That for the moiety of the proceeds belonging to Tagart & Caldwell, an order was given by them in favor of Van Wyck & Dorsey as early as March, 1807, in consequence of which order Van Wyck & Dorsey, who sold the property at auction under the marshal's directions, were permitted to retain the part belonging to Tagart & Caldwell upon an understanding to keep it if the vessel and cargo were acquitted, but to return it in case of a different issue. That the other moiety of the proceeds was paid on 6 April, 1809, which was previous to the filing of the mandate in the court below by the marshal to the present appellant, as appears by his receipt of that date, and which expresses the sum therein mentioned to be for his one-half of the net proceeds of the sale of the schooner Collector and cargo. The marshal died pending the proceedings, and they were revived against his executors.

Page 19 U. S. 201

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