
    GARDNER a. TYLER.
    
      Supreme Court, First District; General Term,
    
    
      May, 1863.
    United States District Court.—Causes of Martttme Jurisdiction.—Summary Personal Judgment.
    Under the act of Congress of 1847 (9 U. S. Stat. at Large, 181, ch. 55), which, authorizes the United States District Courts, in cases of admiralty- and maritime jurisdiction, to render summary personal judgment upon the bond given to procure the discharge of any vessel against which proceedings are pending, such personal judgment does not conclude the defendants in an action upon the judgment from disputing the jurisdiction of the District Court by showing that they never executed the bond, or that the attorney who assumed to execute it in their names had no authority to do so.
    
      Even if such defendants could he estopped from denying the execution of the hond by proof that the discharge of their vessel was procured by it, yet, in the case of a bond purporting to be executed by one of a number of claimants, no such estoppel, against him, results, since he might have supposed that the discharge was procured by the intervention of his fellow-claimants.
    Appeal from a judgment. '
    This action was by John Gardner and Charles Coleman against Daniel Tyler and John J. Boyd, to recover $19,649.85. In February, 1856, the plaintiffs filed their libel in the United States District Court for the Southern District of Sew York, against the bark “ White Squall,” her tackle, &c., alleging that they were the owners of a bottomry bond upon this vessel,. executed by the master thereof at Rio de Janeiro, which port she had entered in distress, amounting to $12,796.10 of principal, and $3,199.02 for maritime interest, amounting to the sum of $15,995.12, and praying process in due form of law against the bark, her tackle, &c., and that she be condemned and sold to pay said claim, with costs of the snit. The vessel was ‘on that day arrested accordingly, and brought into court. Tyler and six others filed a claim to the bark as owners of five-sevenths thereof. In March of the same year, Hitchcock, one of the claimants, applied for a discharge of the bark, and for the purpose of effecting such discharge gave a bond in the penal sum of $32,000, executed and acknowledged by John J. Boyd, and purporting further to be signed “ Dan Tyler, by H. M. Barnard, Att’y.” In January, 1857, a decree was entered that the libellants recover of the bark, her tackle, &c., $17,594.63, and on suggestion that the bark had been discharged out of custody, a summary judgment was in the same decree entered against the present defendants' for $32,000. The action was upon this decree.
    At the trial before Mr. Justice Clerke, Tyler offered to prove that he had never executed the bond to the marshal upon which summary judgment m personam, had been rendered by the District Court—had never authorized Barnard, who was one of his proctors in the cause, to execute it in his name—had never given or signed stay power of attorney to Barnard for such purpose, and that he had never heard of the existence of the bond until judgment had been entered upon it against him in the District Court. The court refused to receive this evidence, but held the record of the District Court conclusive evidence of the defendant’s liability, and judgment was entered against Tyler for $6,583.52, from which defendant appealed.
    
      Isaiah T. Williams, for the appellant.
    I. The offer to prove that the defendant never executed the bond in question, never authorized the same to be executed, never knew of the execution thereof until long after the determination of the suit in the District Court, and that he never in any manner ratified the execution of the bond, was improperly rejected by the court. The lawful execution of that bond by Tyler, therefore, was the fact upon which the question of jurisdiction wholly depended.
    II. The record of the judgment of the District Court was not conclusive evidence of that fact; but its verity was" liable to be impeached and negatived in the same manner, and to the same extent, as the record of a foreign judgment. (Baldwin a. Hale, 17 Johns., 272; and see Walsh a. Durkin, 12 Ib., 99; Tarbell a. Griggs, 3 Paige, 207.) Unless a court has jurisdiction it can never make a record which imparts uncontrollable verity to the party over whom it has usurped jurisdiction; and he ought not, therefore, to be estopped by any allegation in that record, from proving any fact that goes to establish the truth of a plea, alleging want of jurisdiction. (Starbuck a. Murray, 5 Wend., 148; Aldrich a. McKinney, 4 Conn., 380; Latham a. Edgerton, 9 Cow., 227; Borden a. Fitch, 15 Johns., 141; Mills a. Martin, 19 Ib., 33.)
    III. The provision of the Constitution (§ 1, Art. 4) has no application to judgments of the Federal courts. But if it were applicable, “it does not prevent an inquiry into the jurisdiction of the court, in which the original judgment was given, to pronounce it.” (Story on the Const., § 1313 ; Bessell a. Briggs, 9 Mass., 462, 467 ; Shumway a. Stillman, 4 Cow., 292; Borden a. Fitch, 15 Johns., 141.)
    IV. The facts set forth in the answer are sufficient to have sustained a bill in equity for relief against the decree. And if sufficient for that purpose, it is now perfectly well settled that such averments are available in an answer to defeat an action at law. (Dobson a. Pearce, 12 N. Y., 166; Foot a. Sprague, 12 How. Pr., 355; Hunt a. Farmers’ Loan & Trust Co., 8 Ib., 418.) It was, therefore, error to exclude upon the trial evidence of such facts as would have entitled the defendant to relief against the decree had he filed a bill in equity for that specific purpose. (Story Eq. Juris., § 885.)
    
      Jeremiah Larocque for the respondents.
    I. By the Constitution and Judiciary Act of the United States, the District Courts of the United States have exclusive original cognizance of all causes of admiralty and maritime jurisdiction. (U. S. Const., art. 3, § 2, subd. 1; 1 U. S. Stat. at Large, 76, 77, § 9.)
    II. By the act of 1847, under which the bond in question was given, jurisdiction was expressly'conferred on the court, in such cases in rem, to render judgment on the bond, as a part of its decree upon the merits" of the cause. (9 U. S. Stat. at Large, 181, ch. 55.)
    III. The present appellant was a party on the record in the U. S. District Court, put in a signed and sworn answer, and was represented by counsel on the hearing on which the decree was made, as well on the bond as on the merits of the cause, having previously, by his proctors (one of whom himself had signed it as his attorney), presented the bond to the court as a genuine bond, and taken an order upon it, under which the vessel was discharged from custody.
    IV. For this court, therefore, to rehear the merits of the cause .upon which the District Court rendered its decree, would be tó take original jurisdiction of an admiralty cause, which the Constitution and laws of the United States expressly forbid. The record of the District Court shows full jurisdiction of the subject-matter, and of the person of the present appellant. It had jurisdiction to render judgment against him personally for subtraction of the security, or for costs, as well as on the bond. Its being a matter of which that court has cognizance exclusively of the State courts, distinguishes it from all the cases cited on the other side. (Dudley a. Mayhew, 3 N. Y., 9; Parsons a. Barnard, 7 Johns., 144 ; Livingston a. Van Ingen, 9 Ib., 506, 582; Sturgis a. Law, 3 Sandf., 451; Lessee of Rhodes a. Snyder, 4 Wash. C. C, 715; The Mary, 9 Cranch, 126, 144.)
   Sutherland, P. J.

If the defendant Tyler did not execute the bond, nor authorize its execution by Barnard, certainly the TJ. S. District Court had no jurisdiction to render the decree in personam against Tyler founded on the hond.

The bond purported to have been executed by Barnard as attorney for Tyler; and the court must be presumed to have made the decree in personam, on the assumption that Barnard had been duly authorized to execute the bond for Tyler; but on the trial of this action, which was an action on the said decree or judgment in personam, the defendant Tyler offered to prove that he never executed the bond, and never authorized the execution of the bond by Barnard; which evidence was excluded by the court. If Tyler did not execute the bond, nor authorize its execution by Barnard, how did the court acquire jurisdiction of the person of Tyler, and a right to render the judgment against him in personam on the bond?

The pleadings in the proceeding in the U. S. District Court, related exclusively to the proceeding in rem against the vessel. There was no issue or allegation in the pleadings as to the bond or the execution of the bond. There was no citation or process on the bond. It cannot, therefore, be said, I think, that the rendering of the judgment on the bond involved or implied an adjudication as to the fact of the execution of the bond.

The form of the record is, “ and it being suggested to the court that the said ship was discharged on bond, in pursuance S" the act of Congress,” &c. In giving judgment on the bond, e court assumed, and probably had a right to assume, that it had been executed by Tyler as principal, and Boyd as surety; but I do not think it can be said that the record shows that the fact of the execution of the bond was adjudicated or passed upon. No doubt the jurisdiction of the court to render the judgment in personam on the bond was to be presumed (Che-mung Canal Bank a. Judson, 10 N. Y., 254); but the question is, whether Tyler, in the action on the judgment in personam on the bond, had not a right to show affirmatively and collaterally that he never executed the bond, nor authorized its execution by Barnard, and thus show that he never appeared in the action or proceeding in rem, in the IT. S. District Court, so as to authorize the judgment inpersonam on the bond against him, and that in fact there never was any subject-matter for such personal judgment as to him.

The evidence offered, I think, tended to show, not an error or irregularity, but a total want of jurisdiction to render the judgment as to Tyler, by showing that as to him, there really never was any bond or subject-matter for such a judgment.

I think, therefore, the record of the proceedings and judgment in the United States District Court, did not estop Tyler from showing collaterally and affirmatively, in the action on the judgment in this court, that he never executed the bond, nor authorized its execution by Barnard. (Chemung Canal Bank a. Judson, supra; Dobson a. Pearce, 12 N. Y., 156; Starbuck a. Murray, 5 Wend., 148 ; Noyes a. Birthe, 6 Barb., 613.)

If Tyler was not estopped from giving the evidence by the ' record of the proceedings and judgment of the United States District Court, was he estopped upon the principle that, as one of the co-claimants of five-sevenths of the vessel, he had availed himself of the discharge of the vessel from the custody of the marshal, consequent upon the bond’s .being approved and presented to the marshal ?

I think we must assume from the case that the proctors of .Tyler and the other claimants of five-sevenths of the vessel, first presented the bond to the judge for his approval, and then to the marshal, and thus procured her discharge; and that on her discharge she was delivered up to Tyler and his co-claimant.

It, therefore, sufficiently appears, from this case, that Tyler, as one of the claimants and owners, had the benefit of the discharge of the vessel on the delivery of the bond, approved, to the marshal; and as Tyler must be presumed to have known the law, he must probably be presumed to have known that the vessel had been discharged and delivered to the claimants on the filing of a bond, executed by one or more of the claimants.

But there were seven claimants—six besides Tyler—as owners in common of five-sevenths of the vessel. Assume that Tyler, on the discharge and redelivery of the vessel, is to be charged with knowledge of the fact that a bond for her discharge had been given and filed, yet he may have supposed that such bond had been executed by one or more of his co-claimants. There is nothing in the case inconsistent with such a supposition on his part. An estoppel implies knowledge. I find nothing in the case to show that Tyler knew that a bond, purporting to have been signed by Barnard as his .attorney, had been presented and filed, until after the judgment or decree in the United States District Court.

I do not see, then, upon what principle we can hold that Tyler was estopped from giving the evidence offered, upon the ground that he had availed himself of the bond as executed, and of the discharge of the vessel. If he had been the only claimant, perhaps, under the circumstances, we might have held him estopped.

Without considering any other question in the case, my conclusion is, that the judgment appealed from should be reversed, with costs, to abide the event of the action.

Ingraham, J., concurred.

Clerke, J., expressed no opinion.  