Page:United States Reports, Volume 2.djvu/128

 na Cases ruled and adjudged in the 1791. the ufual meafure of damages, for delaying payment, the Court srv-.! cannot interfere. I am, therefore, of opinion, that a new trial ought not to be granted. With refpcét to the reafons in arreit of judgment, I think they ma be comprized within three heads. til. That it does not appear on the record, that the original caufe, concerning the five cailrs of iilver, was within the jurif- diction of the Court of Admiralty. .2d. That if it wasnot, Antbony Fournk, mailer of the bri- gantine Count Durant, had no right, by the Common Law, to take fuch a writing, as the one now fued, from the defendants. gd. That, if fuch a writing could be taken by the Common Law, yet an aélion of debt upon it could not be maintained. tit. As to the firit: It is recited in the information, by the Attorney General, that the libel in the Court of Admiralty was conceming {ive barrels of iilver, faved from the wreck of the brigantine Count Durant, and put into the cullody of the Mar- fhall, and nothing more, except that falvage was decreed to Anthony Fournie, for favingit. Shipwreclt is a matter of revenue. In a legal wreck, the goods mult come on ihore. jetjim, jlomm and Iigem, are not matters of revenue, and are cognizable inthe Admiralty ; but wreck is determinable by the Common Law. 1 Blaey}. Comm. ago. g Ibid 16o. _; Ca. IO6. 107. 6 Wn. SI2. pl. g. It is not alledged, that the {ilver was _7etj2em, jlorjirm or ligem; or that the caufe arofe upon the high feas, or within the Admi- ralty, or Maritime jurifdiétion ; but, if we travel out of the re- cord, the contrary appeared from the evidence; that the mailer (Fournie} had iigned abill of lading for it; that it was never out of his cuftody ; that he carried it on ihore at Lewylown, in the Delaware flate,_and from thence to Pbilaeleqzbia, by land. t Vent. go8. Cnrtb. 423. Dalla: Rep. go. All the proceedings of a Court, having no jurifdiélion, are void. r Salk. 201. From which it rather feems, that the Court of Admiralty had no ju- rifdiélion of the original caufe, from any allegation, averment, or other matter, appearing in the information; and that this writing would not warrant a fuit in that Court. But, as to this, it is not neceilhry to give a politive opinion. 2d. I will then coniider the fecond point, whether Fournie could gake this writing by the common law from the defen- dants _Although a Court of Admiralty cannot take a tecognizance, which is a bond, or obligation, of record (that Court not heir;} a Court of record, nor the Judge, a Judge of record. 6 in. Abr. goo. letter I. pl. 1.) yet, it can takea caution or flipula· tion; which is ufually for appearance, or to perform a decree, Ire. and is in nature of a recognizance. It appears, that the proceedings

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