The Lucy

MOTION to dismiss an appeal from the District Court for the Southern District of Florida, condemning the schooner Lucy, the case being this:

An act of Congress of 1803 prescribes the circumstances under which appeals are allowed from the District to the Circuit Courts, and from these last to this court. This act being in force and governing the appeals mentioned, an act of February, 1847, established the District Court for the Southern District of Florida, with the jurisdiction and powers of a District and Circuit Court of the United States; and appeals were allowed from its decrees in the same manner, and under the same regulations as appeals from a Circuit Court.

On the 15th of July, 1862, Congress passed an act establishing a Circuit Court for a circuit which included the Southern District of Florida, and repealing the former act conferring upon the District Court Circuit Court jurisdiction.

In this state of the law, on the 4th of August, 1862, that is to say, nineteen days after this last statute was enacted, the District Court passed a decree condemning the schooner Lucy, and on the 15th, allowed an appeal to this court.

The record was, in the October following, filed in the Circuit Court for the district 'by reason of the act of Congress, approved July 15th, 1862, establishing a Circuit Court in said district.'

Afterward, to wit, May 1st, 1867, the cause was transferred to the Supreme Court of the United States by consent of all parties in interest, and the case so came up here from the Circuit Court. The record was filed December 24th, 1867.

The Attorney-General and Mr. Ashton, special counsel of the United States, citing The Alicia, argued in support of the motion to dismiss:

1. That the appeal allowed in August must have been so granted in ignorance that the act establishing a District Court with Circuit Court powers had been repealed in July; that the transfer into the Circuit Court in the absence of statutory authority, and the transfer by consent to this court was a nullity.

2. That independently of this, the cause must be dismissed because the record was not filed before the end of the term succeeding the allowance of the appeal, nor before the end of the term succeeding the passage of the act of June 30th, 1864.

Mr. Durant, contra, distinguishing the case from The Alicia, contended, that the act of filing the transcript of the record in the Circuit Court of Florida was a mere error of the clerk, which could prejudice no one, and gave that court no jurisdiction; that the agreement between the parties, that the appeal taken and allowed in this case be taken to the Supreme Court of the United States, operated as a waiver of the irregularity existing, in the fact that the appeal had not been filed in the Supreme Court of the United States during the December Term, 1862, and as a consent that it should be filed at the next term after the agreement, which was done; that an irregularity in the return of a writ of error or appeal might be cured by consent, whether implied from appearance or otherwise shown, and that good faith required that the agreement made by the United States below should be kept here, since no law forbade its observance in the present instance.

The CHIEF JUSTICE delivered the opinion of the court.