V. Carson. Before trial and condemnation, perishable articles Jennings may be sold, but in no other case, unless the power be given by statute law. 2 Browne's Civil Law, 227. 229. 446. 450. A special power to sell, notwithstanding an appeal, is given by the British prize acts; but no such power was given to the admiralty court of New-Jersey, *either by the law of that state or the act of congress. 2 Browne's Civil Law, 231. 454. If the property was in the custody of Carson, he was bound by the sentence of restitution. As to the question whether the libellant has any remedy against the executors of the owners of the privateer, we say that we claim merely restitution in specie, or of the value; we claim no damages for the tort. CHASE, J. This is a libel grounded upon the original wrong. The proceedings of the court of admiralty of New-Jersey, and of the continental court of appeals, are brought in only as an exhibit. There is no new relief prayed for. Lewis. There is a supplemental libel, and the first libel prays for general relief. It is the same prayer as in the case of Penhallow v. Doane. The case in Cowper, 74. shows that the remedy extends to executors, where the estate of the testator has been benefited by the tort. The case of Penhallow v. Doane is against the executors of the owner. The libel in the present case was drawn from that precedent. MARSHALL, Ch. J. The objection is, that the libel does not charge that the property has not been restored; nor that it has not been proceeded against; nor that the sentence of the court of appeals has not been carried into effect. If these allegations had been made in the bill, and there had been a prayer for general relief, your argument would be pertinent. But the libel complains only of the original tortious capture, and claims damages. There is no allegation that the property was destroyed, or that a wrongful sale had been made. LIVINGSTON, J. It is strange that the case of Penhal #17 Jennings V. Carson. *18 * 19 low v. Doane should be cited by the appellant. The decision in that case is directly against him. The court there gave relief only for the property which actually came to the hands of the respondents. *MARSHALL, Ch. J. observed, that in the case cited from Cowper, the property had come to the hands of the executor. The law of that case is not denied by this court. Lewis. This court is sitting as a court of admiralty proceeding according to the law of nations. No irregularity of form ought to prevent us from obtaining relief according to the case we make out. As to the question whether the district court of Pennsylvania had cognisance, he observed, That if the property had been carried first to NewJersey and then to Pennsylvania, the libel would have been proper in Pennsylvania. So where the libel is against the person, and he is found in Pennsylvania, the libel must be filed there. The only remedy of the libellant is in the courts of the United States, and the federal district court of New-Jersey is as foreign to the state court of New-Jersey, as the federal district court of Pennsylvania. Carson was bound by the decree of the court of appeals; and courts of admiralty proceeding according to the law of nations will aid each other in the execution of their sentences. Carson died bound by the decree, and his executors are therefore bound. As they lived in Pennsylvania, we could only sue them there. As to the extent of the relief, he observed, that the sentence was for restitution; and as that sentence was passed with the knowledge that a sale had been made, he inferred that the court of appeals did not intend that the proceeds of the sale only should be paid over, but that there should be an actual restitution of the thing itself, or of its actual value. It is no answer to say that such is the usual form of decree in cases where a sale has been made, because those are precedents where the sale has been lawfully made; but here it was unlawful. Dallas, on the same side. *The real question is, who shall bear the loss of the V. depreciation of the money; and this depends upon the Jennings question in whose possession was the property at the time of the decree of restitution. The claimant did no act, and was guilty of no omission, which could make that loss fall upon him; but it was a loss produced by the tortious act of the captors, and they are in law answerable for all the consequences. In England, formerly, all captures were considered as made for the crown. It was only in consequence of the prize acts and proclamations, that the property was adjudged to the captors. But it is now settled that the property vests in the captors immediately upon the capture; 5 Rob.(a) and the resolves of the old congress take for granted the same principle. By the law of nations the property is changed by the capture, and the owner has no further power over it. The claimant is really and substantially a defendant through all the forms of proceeding, as well in the original suit as in the present. There was no assent, on his part, to the sale; no acquiescence in any act of the court, or of the marshal. The decree of restitution supposes and implies that the property remained in the hands of the captors. The order for sale was made to carry into effect the decree of condemnation, and for the purpose of distribution, not for the preservation of the property, nor to hold it in custody of the law. No security was given by the captors or by the marshal. No public notice was given of the sale; no such notice was required by the order of sale. The sale was made thirteen days after the order was suspended by the appeal, and the captor was the purchaser. The case was before the court of appeals upon its particular circumstances as well as upon its general merits; and the fact of the sale after the appeal must have been known to the court. Two years had elapsed since the original sentence. A restitution of the thing itself was impossible; and the form of the decree of reversal must have been a matter in question. If the sale had been regularly and lawfully made, the court of appeals would have taken notice of it, and have decreed restoration of the proceeds of the sale. 3 Dall. 102. 115. 119. Penhallow v. Doane. It was a fact of Carson. * 20 (a) The case of the Elsebe, 5 Rob. 173. seems contra, Jennings V. Carson. *21 which the captor might have availed himself before that court. But the marshal is to be considered merely as the agent of the captor. The claimant had no remedy but against the person of the captor. There is no evidence that the proceeds of the sale are anywhere to be found. The original libel did not ask for process to arrest the vessel, but merely prayed for condemnation. The possession, and the right of possession, were in the captor. There was no process to attach the vessel. The first process was a monition and venire for the jury. The marshal could have no right to possession, unless by virtue of process of attachment. There is no order in the whole proceedings which takes the possession from the captor. After the appeal the order of sale was a nullity, and the sale by the marshal was as the agent of the captor, who was a trustee for the claimant, and had no right to sell; and is, therefore, liable for all the consequences. February 11. MARSHALL, Ch. J. delivered the opinion of the court. The privateer Addition, cruising under a commission granted by the congress of these United States during the war between this country and Great Britain, captured the sloop George, brought her into port and libelled her in the court of admiralty for the state of New-Jersey, where she was condemned as lawful prize by a sentence rendered on the 31st of October, 1778, and ordered to be sold by the marshal. From this sentence Richard D. Jennings, the owner, prayed an appeal, which, on the 23d of December, 1780, came on to be heard before the court of appeals constituted by congress, when the sentence of the court of Jersey was reversed, and restitution of the vessel and cargo was awarded. Pending the appeal, on the 13th of November, 1778, the order of sale *was executed, and the proceeds of sale remained in possession of the marshal. It does not appear that any application was ever made to the court of New-Jersey to have execution of the decree of the court of appeals, and this suit is brought to carry it into execution, or on some other principle to recover from the estate of Joseph Carson, who was part owner of the privateer Addition, the value of the George and her cargo. So far as this bill seeks to carry into effect the decree of the 23d of December, 1780, there is no doubt of the jurisdiction of the court; but the relief granted can only be commensurate with that decree. It is, therefore, all essential to the merits of this cause to inquire how far Joseph Carson, the testator of the defendants, was bound by the sentence which this court is asked to carry into effect. The words under which the plaintiffs claim are those which direct the restoration of the George and her cargo. As the captors are not ordered by name to effect this restoration, and as the order bound those in possession of the subject on which it must be construed to operate, it must be considered as affecting those who could obey it, not those who were not in possession of the thing to be restored, had no power over it, and were, consequently, unable to redeliver it. Had Richard D. Jennings appeared before the court of New-Jersey with this decree in his hand, and demanded its execution, the process of that court would have been directed to those who possessed the thing to be restored, not to those who held no power over it, either in point of fact or law. This position appears too plain to require the aid of precedent, but if such aid should be looked for, the case of Doane v. Penhallow unquestionably affords it. In that case a decree of reversal and restitution was satisfied by directing the proceeds of the sales to be paid; and even the judge who tried the cause at the circuit concurred with his brethren in reversing his own judgment, so far as it had decreed joint damages, and had thereby rendered the defendant liable for more than he had received. The case of Doane v. Penhallow, therefore, which must be considered as expounding the decree *of the court of appeals now under consideration, has decided that Joseph Carson was bound to effect restitution by that decree so far only as he was, either in law or in fact, possessed of the George and her cargo, or of the proceeds. To this point, therefore, the inquiries of the court will be directed. Jennings V. Carson. * 22 |