
    *George Ross and James Ross executors of George Ross, esq. against David Rittenhouse, esq.
    S. C. 2 Dall. 160.
    Cases of prize and tbeir consequences are exclusively of admiralty jurisdiction.
    No action -will lie against a judge for wbat be does in tbat character.
    Non-payment of money at the day is a forfeiture of a counter bond.
    
      Qn. Whether an appeal will lie from the general verdict of a jury in the case of a prize, taken by citizens of the United States, and where the contest is between them only, under the act of assembly of September 9th 1778?
    Debt sur obligation, with special conditions.
    This cause was tried at Nisi Prius for the county of Philadelphia, and a verdict taken for the plaintiffs on the 27th March 1793, for 855I. 3s. 3d. debt, with sixpence damages and sixpence costs, subject to the court’s opinion on a case stated, which in substance is as follows:
    The British sloop Active, John Underwood master, sailed from Jamaica to New York, then in possession of the British army, about the 1st August 1778 — Gideon Olmstead, Artemus White, Aquilla Rumsdale and David Clark, American citizens and sailors, shipped themselves on board of the sloop, and on the high seas rose on the captain and crew on the 6th September following, and confined them between decks.
    On the 8th of the same month, the brigantine Convention, a vessel of war belonging to the state of Pennsylvania, captain Thomas Houston, and the sloop Girard, a private vessel of war, captain James Josiah, hove in sight, and the sloop Active was brought into the port of Philadelphia as a prize. On the 14th September, she was libelled there in the state court of admiralty as a prize before George Ross esquire (the plaintiff’s testator) judge of that court. The four American seamen claimed the whole vessel and cargo as tlieir exclusive prize. Captain Houston claimed a moiety for the- state himself and crew, and captain Josiah claimed the fourth part for his. owners himself and crew, allowing one other fourth for the four seamen above named. All the claimants were citizens of the United States, and the question between them was, whether Olmstead and his fellow seamen had subdued the rest of the crew of the sloop Active, before the other vessels came in sight, and whether hostilities had ceased, before the latter came to their assistance. The libels were tried by a jury duly returned on the 5th November 1778, who found the sloop Active and her cargo a prize, and being of opinion that she was not wholly subdued by the four American mariners, gave a general verdict that only one fourth part belonged to Olmstead, White, Rumsdale and Clark, and the other three fourths parts to the owners and seamen of the Convention and Girard. This verdict was confirmed by the decree of the judge, and Olmstead and his companions appealed therefrom to the Court of Appeals of the United States. On the 12th December 1778, their appeal was instituted, and on the 15th of the same month, the sentence of the lower court was re-*4441 versed, *and the whole proceeds awarded to the appel- -* lants, with 280 dollars costs. On the 17th December following, the judge of the state court of admiralty decreed, that there could be no appeal from the general verdict of a jury, and refused obedience to the decree of reversal. [The libel, answer, depositions and all the proceedings of the court of admiralty of Pennsylvania, as well as the proceedings of the court of errors and appeals, were made a part of the case, from which the foregoing facts are extracted.]
    The marshal by the order of the judge, brought the money into court, and one moiety of the nett proceeds was paid into the state treasury. On the 1st May 1779, ^ie defendant as treasurer of the state of Pennsylvania executed the obligation, which is the foundation of the present suit, to the plaintiff’s testator, in the penalty of 22,oool. — “Conditioned for the repayment and restitution of the sum of 11,4961. 9s. gd. paid ‘ ‘ by the said George Ross, the judge of the state court of ad- ‘ ‘ miralty to the defendant, as the share and dividend of the “said state in and out of the prize sloop Active, according to “the verdict of the jury on the trial of the same sloop in the ‘ ‘ admiralty court of the said state, in case the said George ‘ ‘ Ross should thereafter in due course of law be compelled to “pay the same, according to the decree of the court of appeals, in the case of the said sloop Active, and for the in- ‘ ‘ demnification of the said George Ross, from all actions and “demands, which might arise on account of his having paid “the said money to the defendant.”
    Olmstead, White, Rumsdale and Clark afterwards brought an action of assumpsit for money had and received to their use, against the now plaintiffs as executors of their father George Ross, in the Court of Common Pleas of Eancaster county, to May term 1786, and obtained judgment thereon by default. On the 6th November 1786, a jury of inquiry liquidated their damages at 3248b 4s. 7% d. on which final judgment was afterwards rendered. [The record of this recovery was also made a part of the case.] But it was stated, that the defendant had no notice of these proceedings until after the final judgment obtained.
    The present suit was brought on the obligation, for an indemnification against this judgment.
    The arguments of counsel took place in April term last. Mr. Lewis for the plaintiff, stated the case and observed that three questions would naturally arise thereon. .
    ist, Had the Court of Appeals of the United States jurisdiction over the cause?
    * 2d, Had the court of Common Pleas of Lancaster r*AAK county jurisdiction? L
    3d, Are the plaintiffs damnified? Or will the circumstances of the case warrant the present suit?
    As to the first point: the resolves of congress of November 25th 1775, (* vol. Cong. Journ. 260,) were founded on the just principle of retaliation, Great Britain having encouraged the American seamen to take the vessels of their owners into British ports. Under the 4th resolution, they “recom“mended 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 deter- “ mining 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.” And in the 6th resolution, it is expressly declared, that “in all cases an appeal shall be al- ‘ ‘ lowed to the congress, or such person or persons as they “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,” &c.
    A law of Pennsylvania was enacted September 9th 1778, by which a court of admiralty was established; and by section 6, it is directed, that the trial of all libels shall be by jury, and that “the finding of the said jury shall establish the facts, ‘ ‘ without re-examination or appeal. ’ ’ In section 7, it is provided, that in all cases of captures an appeal shall be allowed to congress, or such persons as they shall appoint for hearing and trying appeals. But it is singular, that they restrict the demand of appeals to within three days after definite sentence, and the appeal to be lodged with the secretary of congress within thirty days afterwards. It is also worthy of observation, that this act was passed on the day succeeding the time, when even captains Houston and Josiah must admit, that the crew of the sloop Active was fully subdued, a-nd all hostilities had ceased.
    This law was at length repealed by another act passed on March 8th 1780, (in conformity with the resolve of congress of January 15th 1780. 6 Cong. Journ. 11,) whereby it is enacted, that the judge shall pass sentence and decree, “according as the maritime law, and law of nations shall require; “the trial to be by witnesses according to the course of the “civil law;” and an appeal in all cases of prize on water, to lie to the judges of appeals appointed by congress.
    Under the resolves of congress of November 25th 1775, there can be little doubt that the true meaning thereof was to *44H reserve * an appeal in all prize cases, as well in matters -* of fact as of law. It cannot be construed otherwise, without doing plain violence to the words. The authority of the state legislatures was founded on the resolve of congress and they could have no power in derogation thereof.
    The congress derived their right from a higher source than those legislative bodies; and whenever the latter made provisions inconsistent with the resolutions of the former, they could have no legal effect. The war of Great Britain was not directed against thirteen individual, separate colonies or states, but against the whole body of the people, considered as one common mass, 11 who had revolted, ” as it was said. The rights of war and peace were delegated, by the common consent of the people at large, to the congress, and that body was alone competent to decide in the dernier resort in cases of prize. This inherent right they must -necessarily have been possessed of, for the common safety and defence, least war with foreign states might be introduced by judicial decisions, unknown to the laws of nations. Distinct states could not, in the nature of things, possess powers adequate to these great objects, and could have no right to interfere, unless through the recommendation of the congress. This body exercised the supreme power, as representing the interests of the union; and hence, they only could authorize the fitting out of privateers, and make proper and general regulations as incidental thereto. But if the different states possessed those powers, individually, general Washington would have had no right, during the war, to march his army through Pennsylvania, without the authority of that state. This absurdity will scarcely be contended for by the state advocates, but it must necessarily flow from their positions.
    The second point is established by the decision of this court in Henderson v. Clarkson, April term 1792. The plaintiff there purchased from seamen a number of shares of prize money. The defendant was marshal of the Court of Admiralty, and received the seamens money, and the suit against him was declared to be maintainable. There the money was in transitu, and not in the hands of an agent. The present case is much stronger, for Mr. Ross, as judge of the .Court of Admiralty, had no more right to receive the money, which arose from the sale of the sloop Active and her cargo, than to receive the public papers from the office of his register; and in the former particular, he could not be legally said to have ' paid the money over, as the judge of the court. A captor of a prize assigns his share thereon before condemnation, it was held, that the assignee might maintain a suit against the ship’s agent. The property was * vested as soon as the [-*447 ship was taken. 1 Wils. 211. And if the suit had L been brought against any other person than the agent, it would equally have been maintainable.
    The common law courts have jurisdiction in matters of prize, where there is a vested interest under an act of parliament. Where there is an adjudication of prize by the Admiralty Court, the rights which the statute gives, are cognizable in the courts of common law. H. Bla. 515. The officers of the land service have recovered at law, against the agent in the case of prizes taken at sea. Ib. ’ 520. Agents are supposed to be subject to actions, at the instance of those who are entitled to share in the prize. It is a legal vested right, and the method of obtaining the effect of that right, is by action against the agents. Ib. 522, 523.
    The only objection I have heard against this case of Home v. Earl Camden, is the denial of the jurisdiction of the Court of Admiralty; on which ground alone, I apprehend the judgment of the Common Pleas was afterwards reversed in B. R. Vid.' 4 Term Rep. 382, 393, 397.
    As to the third point, I take the current of authorities to be clearly with the plaintiffs. On a counter bond, conditioned to save the obligee harmless from another bond, the money not being paid at the day, the counter bond is forfeited. 1 Vent. 261. And in such a case it is no plea to say, that as the defendant was going to pay it, he was prevented by the covin of the plaintiff. Cro. El. 672. Nor that the first bond was usurious. Ib. 642, 588. Where one is obliged to acquit another of such a debt, or süch a suit, it is not sufficient to save him harmless, but he ought to procure his actual discharge. Cro. Jac. 340. The plea of nonfuit damni-Jicatus implies, that the defendant had saved the plaintiff harmless, by release, payment, or otherwise. 5 Co. 24, a. It is no plea to a counter bond, that the first bond was usurious. 2 Eeon. 166. 2 Anders. 121. Non-payment of the money at the day is a present forfeiture of a counter bond. Putting the obligee in danger of being arrested, is a damnification.
    Messrs. Ingersoll and Moses Levy for the defendants.
    On the first point. The articles of confederation of the United States were agreed on in congress, on the 15th. November 1777, (3 Cong. Journ. 502,) and were sent to the different states on the 15th November following, but were not finally ratified by Maryland until 1st March 1781. Whether the congress had previous thereto, the extensive powers contended for by the plaintiffs, will best appear by considering that before the final * accession of Maryland, they were r*44.o but an assembly of agents from the different states, not L elected in any one state or colony, except Connecticut, by the people. They first met on September 4th 1774, and after-wards on May 10th 1775, under limited powers, the extent whereof was defined by their instructions. Their avowed' purpose was the redress of grievances, not the formation of new governments in the first instance. All the charges of treason afterwards, were against the different states, not against the congress. So in the states of Holland all the rights of war and peace are still vested in the different states. Until the declaration of independence all the American colonies professed a dependence on Great Britain, and it would be absurd to speak of any supreme sovereign power being delegated to the congress in 1775. The resolves of that assembly were generally recommendatory, as on the 25th November 1775. It is admitted, in the much approved public letters under the signature of “Federalist,” (pa. 68, in the bound volume,) that the powers of the congress were extremely lax, until the formation of the new constitution. And it will not be pretended by the warmest congress advocates, that if that body had concluded a peace in 1775, or 1778, with Great Britain, the peace would have been binding on the then united colonies or states, until the ratification thereof, by the individual colonies or states.
    The governor of Connecticut actually granted commissions to their officers in 1775.
    But admitting for a moment, that the congress had the exclusive rights of peace and war, and all the necessary incidental powers, before the confederation, how have they exercised them to affect the present question? They recommend the trial of captures by jury; they adopt a system, with all its consequences, of which it must be supposed they were fully aware. It was then well known, that civil and common law courts differed in their mode of procedure, both of proof and relief. An appeal will lie in the civil law courts, but not in the courts of common law, on a general verdict, except for error apparent on the face of the record. 3 Bl. Com. 378, 379, 380, 406. Juries have a right to determine both on law and fact; and the congress fully acquainted with this truth, recommend it to the colonies, to erect courts of admiralty for the trial of prize causes, by jury, under such qualifications as to them should seem expedient. If mistakes have taken place, they only can be attributed to the congress, the state, or the state judge, but individuals ought not to suffer thereby.
    To form a true judgment of this resolution of the congress, we must carry ourselves back to the years 1775 and 1778. *44.cn Con* temporánea expositio est fortissimo, in lege. We -* may now think more calmly and dispassionately, when the pressures of danger are past, and when there is no impending necessity to reconcile the public mind to public measures; but we can never think so correctly of the intentions and designs of the congress, unless the existing circumstances of those years pass in review before us. In the address of the congress to the people of Great Britain, (i Cong. Journ. 39,) they claim the right of trial by jury. They pass an eulogium on jury trials (lb. pa. 41,) and lament the want of it in prosecutions, where the supposed offender and the witnesses might be known to juries de vicineto, who could ascertain the degree of credibility to be given to their testimony. They deprecate the inconveniences of an admiralty jurisdiction, the judge a single man, and creature of the crown, &c. So in their address to the inhabitants of the colonies, (lb. pa. 49,) in their petition to the king, (lb. pa. 68,) in their address to the inhabitants of Great Britain, (lb. pa. 152,) and in their address to the people of Ireland, (lb. pa. 181,) the same sentiments are held forth.
    Under these impressions then, the resolutions of congress had passed; their feelings were aroused at the decisions of civil law courts stripped of a jury, and we must conclude, that they intended the trial of prize causes should be in the usual course of common law proceedings. It would be unworthy of the respectable character they bore, to suppose that they meant to deceive the people by a mere ignis fatims.
    
    Where a statute prescribes a penalty, it must be recovered by bill, when no other mode of recovery is directed. 2 Salk. 606, pi. 4. So if to be punished according to one’s demerit, it must be by indictment. So when it gives a penalty, to be recovered before justices of the peace, but prescribes no method of recovering it, it must be the ordinary course of justice by indictment. Ib. So wherever a power is given by statute to enquire, hear and determine, it must be according to the course of the common law by a jury. 4 Bac. Abr. 644.
    The words of new statutes are to be construed according to former decisions on the same words. 1 Bl. Com. 60. Ad quasstionem facti, non respondent judices; ad queestionem juris, non respondent juratores. ' 1 Wils. 55. Co. Lit. 155. b. A saving, totally repugnant to the body of an act, is void. 1 Bl. Com. 89. Mala est expo sitio, quce corrumpit textum.
    
    The appeals under this resolution may be taken to be in the nature of mere writs of error. Thus the Pennsylvania laws, (pa. 74,) considers appeals as writs of error, and 3 Bl. Com. 402, considers writs of error as appeals from the courts.
    *This court cannot but recollect the late trial of [-*459 Gideon Henfield, in the Circuit Court of the United *- States at Philadelphia, for a misdemeanor in infringing the rights of neutrality, and that he was acquitted by a jury of the country, against the decided opinion of the judges, and that a bill of indictment was returned ignoramus against him by the grand jury in Massachusetts; so of three other cases in Georgia. And yet, possessing as congress now do, under the late constitution, the sovereign powers of war and peace, can they bring the same matters in review before other juries? Or can it be deemed derogatory to their, dignity, that they can exercise no such power?
    If therefore the congress possessed this inherent power of appeal in prize cases, they surrendered it to juries. The act of 1778, goes no further, as to denying re-examination or appeal on a general verdict, than the common law would have done, without the same words; expressio eorum, quce tadte insunt, nihil operatur.
    
    There is also a wide difference between recommendatory and “imperative” words. The former are used in the resolve of congress, and the meaning of such terms is plainly defined in the letter of Mr. Jefferson, the late secretary of state, to Mr. Hammond, the British minister. (Correspond, of Brit, and Amer. ministers, 31.) The enacting and recommending a thing to be done, are distinct matters. It comes in effect to this, that the congress have recommended to the different legislatures, to erect courts of admiralty in a certain way; and the state of Pennsylvania has not thought proper to accede in all particulars, to the proposed system.
    The strong ground, on which these great inherent powers were supposed to rest in the congress in 1775, is, that by their superintendence and ultimate determination on appeals, they might by an uniform system of legal decision, prevent wars with foreign states. But this reasoning will not apply to cases where all the parties litigating, are citizens of the United States, as in the case before the court. The defendant therefore, should he concede the power of the congress of determining appeals in prize causes, generally, may safely deny them in the present instance.
    Claims respecting prizes may arise from three different parties. 1. The captor enemy. 2. The captured enemy; and 3. A neutral. 3. Term. Rep. 331. Here the demand is by citizens of Connecticut, suing in the plaintiffs’ names.
    The admiralty tribunal as to prizes is introduced as to foreigners only; as to subjects, the municipal law must govern. In questions of prize between subjects, the statutes must de-xap,-]-i cide, *but not in the case of foreigners; for, where they J are to be affected, the customs of the British admiralty and domestic statutes must be admitted with more caution and reserve. 1 Woodeson, 138, 139. The law merchant, so far as it is positive, may be altered by any municipal legislature, where its own subjects only are concerned; but no change can be wrought in the natural law of nations as to foreigners, by any confederated union of human authority. Woodes. Elem. Jurisprud. 4to ed. 92. So, in the question of post-liminii; by the marine law of England, there is no change of property in case of a capture before condemnation, but now by stat. 29 Geo. 2, c. 34, s. 24, the jus postliminii continues forever. Parke on Insur. 180. . Whether lawful prize or not, is a question between subjects of different states, and belongs entirely to the law of nations, and not to the municipal law of either country to determine it. 3 Bl. Com. 69.
    The stat. of 13 Geo. 2, has made great alterations in the law of nations as to recapture; by it the recapture revests the property of the owner. 3 Atky.’ 195, 196.
    The stat. of 21 Geo. 3, c. 15, called “the Dutch Prize Act,” regulates how booty taken in war shall be divided among the captors. Hen. Blackst. 476.
    The state of Pennsylvania might therefore with propriety have denied an appeal to congress in prize cases, between subjects of the United States; and the state of Massachusetts has likewise uniformly denied them that power, until the ratification of the confederation by Maryland on the 1st March 1781.
    On the second point: the Court of Common Pleas of Lancaster county could not carry into execution the decree of a prize court. What tribunal can decide between the United States and the commonwealth of Pennsylvania, two separate sovereignties. Questions of prize and their consequences are solely and exclusively of admiralty jurisdiction. Doug. 572, 587. 3 Term Rep. 344. 4 Term Rep. 382, 400. Dali. 220, 221. The great question in the admiralty of Pennsylvania and in the Court of Appeals, was, to whom the sloop Active was a prize, whether to Olmstead and his fellow adventurers alone, or to them and the crews of the Convention and Girard ? This is a consequence of prize which a court of common law has no jurisdiction of. The case of Henderson v. Clarkson, so much relied on by the plaintiffs, was a suit by the purchaser of several shares of prize money from seamen, against the marshal of the admiralty, and was founded on a settled account, part whereof was disputed.
    On the third point: the decision in Lancaster county was a mere nullity. If a court has no jurisdiction, its proceedings have no validity. 10 Co. 76. b. It is admitted by the state of *the case, that the defendant had no notice of the r*AKo action at Lancaster, till after the final judgment; he L consequently cannot be bound by the proceedings there. On an indemnification bond the defendant may plead non danini-ficatus; or in excuse, if he has been damnified, that he himself was the occasion of it. 2 Wils. 126, 127. If the condition be to. save harmless from such a thing, this does not extend to actions in which he'might have a lawful defence without the obligor; 5 Vin. Ab. 172, pi. 6. Bro. Conditions, pi. 64; cited S. C.; for the other is not bound to save him harmless against all the world.
    The words of the condition of this bond are to repay the money, in case the plaintiff’s testator shall be compelled to pay the same in due course of law. The general words of indemnity are not to be extended further.
    
      If the plaintiffs have sustained a loss, it lias been occasioned by their own laches, in not making their defence, or giving notice to the defendant .to make one in their stead; they shall not therefore recover over.
    It is moreover contended, that the condition of this obligation is against law, and therefore void. Co. Hit. 206. b.
    Assumpsit will not lie for the value of corn out of sacks delivered by the plaintiff, a bailiff, under an attachment. He ought not to have delivered it to the party who sued out the attachment; and so the promise is against law, and void. Cro. El. 230. Contracts are void, where one undertakes to do an act prohibited, on two grounds: 1st, Because it may be presumed the party did not give his full assent; and 2d, The law takes from the contractor the power of obliging himself to do it. 1 Powel on Contr. 164. Where the consideration or the promise is unlawful, the whole contract is void; so, if one, who is a minister of justice, promise to do a thing that is unlawful in his office, or another promise to save him harmless in so doing, such promises are void; so, a promise generally, restraining one from using his trade, is void, though there be a consideration. Ib. 176, 177.
    Should it be admitted, that the act of assembly of Pennsylvania was void, by reason of its not pursuing the resolution of the congress, the order of the judge in his decree must also be void, and consequently the appeal, and the obligation, with its unlawful condition now put in suit, must be mere nullities.
    Mr. Uewis in reply. While I assume on the one hand the proposition, that under the authorities cited, the proceedings at Lancaster shall amount to the proof of a damnification, I shall admit on the other that they are not conclusive on the *4581 ¿efen<i*ant, but that he is now entitled to as full a de- -* fence in every particular, as he might have had in the action of assumpsit.
    It has not been urged by the plaintiffs, that the act of assembly of 1778, is merely void, as being repugnant to the resolution of congress; but that municipal state provisions incompatible therewith, can have no effect. This is a dispute between the commonwealth of Pennsylvania and certain citizens of Connecticut. The defendant cannot shelter himself as an individual under a supposed error of the former. He represented the state when he received the money, as their officer of treasury, and is indemnified against h-is obligation by their vote. It cannot escape observation, that though the jus postliminii and laws of salvage are proper objects of the English statutes, yet all the subjects are supposed to be virtually represented in their parliament. Olmstead and his little party were aliens to our laws, and had no voice in the choice of our representatives: they did not come voluntarily into the port of Philadelphia to be subjected to the laws of Pennsyb vania, but were tortiously compelled thitlier by the superior force of two armed vessels, who seized their prize: and it is now pressed against them, that all ex post facto law of Pennsylvania, materially different from the resolves of the union, ■ shall operate against them, under all these circumstanc.es of hardship.
    The condition of the obligation is not unlawful. There was no oppression under colour of office in taking the bond. The state admiralty judge freely admitted the appeal when demanded; and the defendant received a proportion of the nett proceeds of the prize, as treasurer of the state, and executed the obligation under a vote of the house of assembly, the circumstances of the whole case being known universally.
    In all the cases cited by the defendant’s counsel on the second point, the question of “prize or no prize” might have arose. Here all the parties to the controversy by their libel, affirm the sloop Active to be a prize, and an evident distinction in this particular presents itself. In Henderson v. Clark-son, the jurisdiction of this court 'was warmly litigated. I am free to confess, that in that cause, I was of opinion, a court of common law had no jurisdiction, the money being merely in transitu; but my objection was overruled on full argument.
    It is agreed, that the powers of congress were not defined previous to the confederation; yet it must also be admitted, that in the nature of things, they possessed every power necessary to the common welfare. They met, it is true, in the first instance, for the redress of grievances; but British measures soon dictated a different stile of conduct. When the calamities of a *war were inevitable, and actually took place, they executed by the common consent of the *- great mass of the people, the powers incident to a supreme head, in conducting systems of defence and reprisal, and warding off public danger. Prom whence else, besides this great source of authority, founded on immediate necessity, did congress appoint a commander in chief, and other subordinate officers of their army, commission privateers, and send blank commissions to the different colonies and states? (See Lee on Captures, 238, 241.)
    It has been relied on, that the articles of confederation first gave the power of erecting prize courts, and it is thence inferred that the congress had it not before. To this I answer, xst, The powers not given by that system of union were reserved to the different states, and therefore it was necessary' to enumerate them specially. 2dly, Several powers were thus given, which they necessarily and uniformly exercised before. Though there could be no treason against the United States until the adoption of the late constitution, it does not follow that we were at all times before in a state of dependence on Great Britain.
    
      Under the express words of the 6th resolution of the congress of 25th November 1775, an appeal in all cases of capture on the high sea is reserved to them. They never could have meant, that juries unacquainted with the laws of nations, should conclusively decide on both law and fact. The peace and safety of the country could not be thus preserved. They must have intended that an appeal should lie to them in all cases, on a general as well as special verdict, on a demurrer and the decree of the judge. The maxim, ad qucestionem facti non respondent judices, was never supposed to apply to a civil law court, for there the judges do determine facts on the written proofs.
    Proceedings in the nature of appeals, from courts of law, are by writs of attaint against the jury, audita querela, or principally by writs of error. 3 Bl. Com. 402, 404, 405. There are these differences between appeals from a court of equity, and writs of error from a court of law. 1st, That the former maybe brought on any interlocutory judgment, the latter upon nothing but only a definitive judgment. 2d, That 011 writs of error, the House of Lords pronounce the judgment, on appeals it gives direction to the courts below to rectify its own decree. Ib. 55. Appeals' lay from the courts of admiralty, both in England and America. Ib. 69. The expressions of the act of assembly of 1778, that “ the finding “of the jury shall establish the facts, without re-examina- . ‘ ‘ tion or appeal, ’ ’ must be confined to a special verdict alone. In our case no facts are thus established, but the jury have drawn erroneous inferences from the facts disclosed *. ep--. * in evidence, which form a part of the record, and could J as well be judged of by the court of appeals as by the jury. .
    . It has been said, that Massachusets has regularly denied to the congress the power of appeals in prize causes, anterior to the confederation. New Hampshire, and perhaps Rhode Island, may be included in this observation; but if the opinions of distinct states are to have weight in this argument, we may safely pronounce, that nine states at the least were in favour of this right of the congress against four others. Several -instances have occurred, wherein appeals from the verdicts of juries have been lodged in the court of appeals of the United States, and there finally decided. It forms a highly respectable authority for the decision of the question of right in the congress in this cause, that the different judges of the court of appeals have uniformly regarded the point as fixed and settled, and a great majority of the congress have given their sanction thereto.
    After this long argument, the court took time to advise thereon; and the disturbances in the western counties of the state having prevented the meeting of all the judges at the last September term, the court now proceeded to give their opinions seriatim.
    
   M’Kean C. J.

having fully stated the case, observed, that thereon several questions had been made, which may be stated as follows.

1. Had the Court of Appeals jurisdiction to investigate facts after a trial and general verdict by a jmy, and to give a contrary decision, without the intervention of another jury?

2. Had the Court of Common Pleas of Lancaster county jurisdiction in the action by Olmstead and the others against the executors of the judge? Or should not the decree of the Court of Appeals have been carried into execution by that court, or the state Court of Admiral'ty, without the aid or interference of any common law court?

3. Can an action be maintained on this bond, the condition whereof is virtually to disobey the Court of Appeals and the laws of the land, if that court had a right to decide contrary to the general verdict of a jury ? And whether the plaintiffs, without having defended or given notice to the present defendant of the suit in the Court of Common Pleas, can support an action on this bond ?

I conceive it proper for me to premise, that I took notice at the time a similar action was first brought to trial in this court, that when the business was before the Court of Appeals of the * United States, in December 1778, I had the honour to be president of that court, but declined sit- L ting, on account of my connection with this state as chief justice, and otherwise; and that the same reason still subsisted. That the next thing to giving a righteous judgment, was to endeavour to give general satisfaction, which circumstance might not probably be attained by our decision of the present controversy, both court and jury being in some degree interested, as they were all citizens of Pennsylvania. Por these reasons, I expressed a wish, that some mode might be adopted for trying the cause in the Supreme Court of the United States. This proposition was then assented to; but it seems our expectations have been disappointed, and we are obliged at last to decide the controversy.

To determine the first question, we must take into consideration the 4th and 6th sections of the act of congress of November 25th, 1775, and the act of assembly, passed September 9th 1778. The congress on the 15th January 1780, resolved (inter alia,) that “the trials in the Court of Appeals “be according to the usage of nations, and not by jury.”

This has been the practice in most nations; but the law of nations, or of nature and reason, is in arbitrary states inforced by the royal power, and in others by the municipal law of the country; which latter may, I conceive, facilitate or improve the execution of the decisions by any means they shall think best, provided this great universal law remains unaltered. Now, why may not a fact respecting the capture from an enemy by citizens of the same state, and in which question no foreign nation or person is concerned, be determined by s jury, as well as in other case? This mode of ascertaining a fact, done on the high seas, to wit, who were the captors of a prize, when the contending parties are all citizens, or subjects of the same country, seems to be as reasonable, as in disputes about property acquired on land. I confess I do not see how the law of nations is counteracted or infringed by it.

In England, if piracy was committed by a subject, it was held a species of treason, being contrary to his allegiance by the antient common law; if by an alien, to be felony only. Formerly it was cognizable, by the admiralty courts, which proceed by the rules of the civil law; but the statute of 28 Hen. 8, c. 15, established a'new jurisdiction for this purpose, which proceeds according to the course of the common law. Here is a precedent of an act of parliament changing the common mode of trial in Europe, and introducing the trial by jury, which remains in force and practice to this day. If this can be done, where life is the stake, a fortiori it may be done in matters of meum & * tuum. It then appearing to me, that the congress and legislature of Pennsylvania had power and authority to make the alteration in the mode of trial of facts litigated between citizens, it remains to be inquired, whether the verdict in the present case was capable of re-examination by the court of appeals, without another jury.

The genius and spirit of the common law of England, which is law in Pennsylvania, will not suffer a sentence or judgment of the lowest court, founded on a general verdict, to be controlled or reversed by the highest jurisdiction, unless for error in matter of law, apparent on the face of the record. 3 Bl. Com. 330, 379. 1 Wils. 55. And this is enforced by the act of assembly of September 9th 1778, in the very case under consideration, which was passed in compliance with the act of congress of November 25th 1775, and allows an appeal in all cases unless from the verdict of the jury, having a reference to the subject matter, and meaning that though facts should not be re-examined or appealed from, but an ap- ■ peal might be made notwithstanding, with respect to anv error in matter of law. The advantages of viva voce evidence over the written in the investigation of truth, will hardly be controverted at this day in the United' States, and the Court of Appeals had not the opportunity of seeing the witnesses on the trial, or of so well knowing the credi. due to them respectively as the jury.

For these reasons, and others, which I shall omit for the sake of brevity, I am sorry to be obliged to say, that in my judgment, the decree of the committee of appeals was contrary to the provisions of the act of congress, and of the general assembly, extrajudicial, erroneous and void. I am strengthened in this opinion, by the true construction of the resolve of the congress of January 15th 1780, viz. that the trials in the new Court of Appeals should be according to the usage of nations, and not by jury, which implies that the Court of Appeals prior to this, had, or ought to have proceeded by jury trials. Ad questionem facti non respondent judices, ad questionem juris non respondent juratoros. 1 Inst. I55- b.

As my opinion, on the first question, is in favor of the defendant, it will appear unnecessary to say any thing to the other points; but as they have been strongly insisted upon, I shall briefly notice one of them.

It rather seems to me, that the appellants had no other way .of obtaining the execution of the decree in their favour, but by the aid of the Court of Appeals, or of the Admiralty, and that no court of common law had any jurisdiction in the case. Dougl. *572. 3 Term Rep. 344. 4 Term Rep. 382, r*458 400. Dallas 221. 1 Wils. 211.

I also think, that no action will lie against a judge, for what he does as such. Cro. El. 80, 397. 1 Mod. 184, 185. 2 Mod. 218. 12 Mod. 388, 391. 1 Ed. Raym. 465. 2 Ed. Raym. 767.—Salk. 397.

Shippen, J.

Two principal questions arise on the case.

1. Whether the Court of Appeals of congress were competent to decide the question of “prize or n.o prize,” and the consequent question of who were the captors to whom the prize should be adjudged, contrary to the verdict of the jury in the state court of admiralty?

2. Was ''he action of Olmstead and others against the executors of the judge of the admiralty, for the money lodged in his court, in consequence of his own decree, cognizable in the Court of Common Pleas of Lancaster county?

As to the first question, I own, I am not convinced, that the sovereign power of the nation, vested by the joint and common consent of the people and states of the union with the exclusive rights of war and peace, and with the consequent necessary powers of judging, in the last resort, of the legality of captures on the ocean, can either i-n reason or sound law, be precluded from deciding on appeal, both of facts and law arising in cases of prize, merely because they had recommended to the different legislatures, to pass laws to establish courts of admiralty for the trial of prize causes, in which the facts were in the first instance to be tried by jury, according to the course of the common law.

1st. Because in the nature of things, and according to the course and practice of all civil law courts, all decisions in the courts, in the last resort, upon appeals, are made upon a view and full consideration of both fact and law.

2<Ily. Because otherwise, appeals from the inferior courts would in most cases be vain and nugatory.

3dly. Because otherwise, no steady and uniform rules of decision could be established, and foreign nations could never know or confide in the grounds of our decisions; and it does not appear to me material, that in the present instance, all the parties were American citizens.

And lastly, because in the present case, congress has explicitly reserved the power of the final decision upon appeal, in all cases.

As to the second question, whether an action is sustainable in the Court of Common Pleas, in behalf of Olmstead and *4591 ot^iers * against the executors of the judge of the admi- -* ralty, for the money he distributed according to his own decree, I acknowledge that I cannot discover any principle or authority in law, upon which such an action can be supported.

It is not now to be made a question, whether the courts of admiralty have not an exclusive jurisdiction over all questions of prize or no prize, and also who are the captors of prizes, and how distribution shall be made, together with the power of enforcing their own decrees. The cases of Rindo v. Rodney, (Doug. 591.) Le Caux v. Eden, (lb. 572.) and Camden v. Home, (4 Term Rep. 382,) fully settle this point.

The jurisdiction of the admiralty seems likewise to be exclusive in many cases, where the question o-f prize appears to be at rest, as where the admiralty has decided that a ship taken is no prize, as in the case of a neutral vessel. In that case, it is not competent for a common law court to sustain a suit for the illegal capture, but a new libel is exhibited in the admiralty, to compel the captors to account to the captured. 4 Term Rep. 385. So in the case of Le Caux v. Eden, an action for false imprisonment would not lie at common law, where the imprisonment was merely in consequence of taking a ship as prize, although the ship had been acquitted. I know of but one case where the common law courts have sustained suits for money, paid out of the Court of Admiralty in consequence of a taking as prize, and that is, where the admiralty has fully liquidated all demands relating to the proceeds of a prize, and the money remains in the hands of the agents of the captors; in such cases, actions at law have been supported against the agents. But in those cases, it must be ascertained that these are the agents of the real captors, for if any thing is left for the admiralty to settle, as if other persons not represented by the agents, claim any part of the proceeds, there the courts of law will not interfere. And this was the case of Rord Camden v. Home. 4 Term Rep. 382.

What is the case before us? A judge of an inferior court of admiralty condemns a prize, declares who are the captors, and orders a distribution accordingly. On appeal to the superior court of admiralty, that court reverses his judgment, and directs a different distribution. The judge below refuses to obey the sentence, and persists in distributing the proceeds of the prize agreeably to his own decree. A suit is brought here to compel the judge to perform the decree of the superior court. Was the case or question of prize at rest? Or was there not something more to be done by the superior court, to enforce this sentence? Can ours be a proper court to decide between the sentences of *two contending courts of admiralty, or to enforce the sentence of either?

It is in vain to say, the times were such, that the superior court could not, or would not, proceed to extremities with the judge of the inferior court. We are not authorized to aid a defective or unwilling jurisdiction, by assuming an extraordinary power unknown to the law. Can a judge, in the execution of his own judgment, although contrary to that of a superior court, be considered as in the situation of an agent, receiving the money of his constituents? Or if by any strained construction, he could be called the agent of those in whose favour he decrees, can he be sued as the agent of those against whom he decrees?

In whatever light I view this question, I am satisfied that the Court of Common Pleas were incompetent to carry into effect the decree of reversal of the superior court of appeals, and that an action for money had and received, against the executors of the judge, who distributed the money according to his own decree, could not be sustained in a court of law.

Yeates, J.

On the statement of facts in this case, three points have occurred:

1. Whether the Court of Appeals of the United States had jurisdiction in the case of the sloop Active ?

2. Whether the Court of Common Pleas at Lancaster had jurisdiction in the action brought by Gideon Olmstead and others, against the now plaintiffs?

3. Whether the plaintiffs are damnified, so as to warrant the present proceedings under all the circumstances? I will consider the different points invertedly.

On the third point, I am satisfied by the authorities cited by the plaintiff’s counsel, that there is sufficient proof of a damnification to warrant the suit in a common case. The non-payment of money at the day, is a forfeiture of a counter bond. 1 Vent. 261. Cro. El. 672. Putting the obligee in danger of being arrested, is a damnification. 3 Bulst. 233. 5 Co. 24, a. Cro. Jac. 340.

It was admitted indeed on the last argument, that the proceedings at Lancaster should be considered as evidence of a damnification, but that the defendant should be let into a full defence in this action. No notice having been given to this defendant, of the institution of the suit against the now plaintiffs, he is not estopped from saying, that they were not bound in the former action to pay the money. 3 Term Rep. 377, is express to this purpose.

On the second point, it has been insisted by the defendant’s * counsel, that the courts of admiralty having exclu-5 -I sive jurisdiction in cases of prize and their consequences, the Common Pleas at Eancaster could have no cognizance of the action commenced by Gideon Olmstead and others.

In the famous case of Ee Caux v. Eden, Willes, J. says, “where the injury is the necessary and natural consequence “of the capture, the Court of Admiralty has the sole and exclusive jurisdiction.” Doug. 579. Ashurst, J. observes, “Where the admiralty has jurisdiction of the original matter, “it ought also to have jurisdiction of every thing, necessarily incidental.” Ib. 580. Buller, J. in a very elaborate argument, infers “from all the adjudged cases, that the ad- “ miralty has a jurisdiction on the question of'prize or not “ prize, and its consequences, and that the common law courts “have none.” Ib. 587, 590. And in Smart v. Wolff, the words of Buller are1 ‘ Every case that I know on the subject, “ is a clear authority to shew, that questions of prize and their “consequences, are solely and exclusively of the admiralty “jurisdiction.” "3 Term. Rep. 344.

In Lord Camden et al. v. Home, it is adjudged, that the prize courts and courts of commissioners of appeals, have the sole and exclusive jurisdiction of the question of prize and no prize, and who are the captors. 4 Term. Rep. 383.

In Doane’s administrators v. Penhallow et al. Dall. 321, Mr. President Shippen expresses himself thus: In this cause “the validity of the sentence of the Court of Appeals is disputed; if we say it is valid, we in effect say, the brigantine “is no prize, if otherwise, we say she was a prize. We have “clearly no authority to say either the one or the other.” And again, “this is an action to carry into execution the “sentence of the Court of Appeals, which we have no authority to do, that being the proper judicature, to carry into ‘ ‘ effect its own sentences. ’ ’

These authorities militate strongly against the jurisdiction of the Court of Common Pleas of Lancaster county. The cause of action there, was “the immediate and necessary “ consequence-of the vessel’s being taken as a prize.” Dall. 221. It was in short, a demand instituted by the plaintiffs as sole captors of the sloop Active.

But it has been contended by the plaintiff’s counsel, that here all parties affirm the same thing, to wit, that the sloop was a prize, and that question cannot now possibly arise, which is said to distinguish it from the several cases cited; and for this purpose, Henderson v. Clarkson, determined in this court April term 1793, is quoted, where the court held, that an agent for * seamen might recover at common law their prize money, due under the decree of the Court of Admiralty of Pennsylvania.

I find from my notes, that the circumstances attending that action were as follow. The plaintiff was appointed agent for forty-three seamen on board the privateer brig Holker, to receive their prize money. The defendant was marshal of the Court of Admiralty of Pennsylvania, where two of the prizes were libelled, condemned and sold. The plaintiff, on the 27th December 1781, gave a bond to the commonwealth in 2500I. penalty, conditioned to account faithfully with the seamen, and to pay over the shares unclaimed within one year to the use of the corporation of contributors to the Pennsylvania hospital. The judge of'the admiralty on that day also issued a warrant to the defendant, to deliver over the goods and money due to the owners and seamen, or their agents, on the different prizes; to which he made return, that the goods and money were ready to be delivered over. That suit was brought to recover the prize money due to the plaintiff’s constituents. The marshal had paid a considerable part and rendered his account, but some of the items therein were disputed. The court, on full argument, resolved, that the agent might, as a common head or centre for the captors and hospital, under the right acquired by the acts of assembly of 8th March and 22d September 1780, institute a suit in his own name, as the captors themselves-might have done; and as the question respecting prize or no prize could not come into controversy, he might recover the money due to them by the admiralty decree, they having a vested interest therein, under the acts of congress and the legislature. The marshal had returned to the judge, that he had the goods and money ready to be delivered to the captors or their agent, and this was held to amount to a written promise to pay the same to the plaintiff Henderson, as agent of the seamen.

The two cases are not analogous; they possess distinct prominent features. In the former cause there was no question who were the captors, or how the booty was to be divided; there were no discordant decrees of different marine courts, no dispute respecting the constitutional powers of the judicature which pronounced the final decree; here they all fully exist, and a common law court at Lancaster was called on to carry into execution the decree of the Court of Appeals against the executors of the state judge, and in derogation of the decree he had given, sanctioned by the verdict of a jury.

On the first point, it is not absolutely necessary to give an opinion, whether if the resolve of congress had been absolute and imperative, instead of being barely recommendatory, as to the * establishment of courts of admiralty in the r*4«3 different states, and the law of any one state had been *- repugnant thereto, such resolution would be supreme, and controul the law of the individual state; or to attempt to define the former powers of the congress, by fixing how far they reached anterior to the accession of Maryland to the confederation, on the ist March 1781. I am, however, compelled to say, that the powers of the congress must necessarily be supposed to have been co-extensive with the great objects which America then had in view, and competent to protect and advance the united interests of the whole. It is sufficient, in my idea, for the decision of the case before us, to observe, that the present suit resting on the judgment in Lancaster county as its basis, if the then plaintiffs were not legally entitled to recover against the executors of Mr. Ross, the action now before the court is not sustainable. 3 Term Rep. 377.

I have only to add, that it would have also afforded me much pleasure if this argument had been conducted before the judges of.the Supreme Court of the United States. We formerly indulged ourselves with hopes of it, when the jury were discharged in an action between the now plaintiffs and Thomas Learning in January term last, where the same points came in question. We may be considered in some remote degree as' parties to the present suit, and the decision of the federal judges would probably have given more general satisfaction. But our opinion has been insisted on, and we are bound to give it. On the best consideration, therefore, that I have been able to give the subject, I find myself constrained to give my voice, that judgment be entered for the defendant.

Smith J.

I had.the honour of being one of the committee of the house of assembly, who met a committee of congress in conference on the business of the sloop Active. Being fully sensible of the difficulty of eradicating early prejudices, I intended to have declined giving any opinion on the points argued before the court; but I will, however, now say, that I perfectly agree with the judge who last delivered his sentiments. Were it necessary to give my sentiments on the first point, I should incline to the opinion of the chief justice respecting it. On one point, I have no difficulty in saying that no action would lie against a judge, for what he does in that character. In addition to the cases already cited on that head, see 12 Co. 24, 25. 7 Mod. 81. Carth. 494, 497. Hardr. 71. Holt 395. 14 Vin. 579.

Judgment for the defendant, by all the court.  