NOTES

ON THE

UNITED STATES REPORTS.

XII WHEATON.

12 Wheat. 1-18, 6 L. Ed. 531, THE PALMYRA.

The Supreme Court has power to reinstate any cause dismissed by mistake. Approved in Watts v. S. M. Hamilton Coal Co., 219 Fed. 1010, setting aside default entered on failure of defendant to appear at trial; City of Manning v. German Ins. Co., 107 Fed. 55, holding court cannot vacate or modify its judgment after expiration of term in the absence of motions. or proceedings taken in the term; The Cleveland, 98 Fed. 632, holding when vessel has been seized upon libel and released on bonds, it cannot again be seized for same cause in absence of fraud or mistake; St. Paul Fire etc. Ins. Co. v. Peck, 40 Okl. 404, 139 Pac. 120, holding Supreme Court could recall mandate transmitted to and recorded by trial court to correct mistake improvidently made; dissenting opinion in Hendryx v. Perkins, 114 Fed. 822, majority holding neither bill for fraud or review can be maintained after nine years when complainant during all of the time knew of the decree; Alviso v. United States, 6 Wall. 458, 18 L. Ed. 721, where appeal was dismissed for apparent want of citation, and it was shown later that citation had been filed, but destroyed by fire; Snow v. Edwards, 2 Low. 275, Fed. Cas. 13,145, allowing summary rehearing on motion in admiralty cause during term at which decree made; The Brig Antelope, 1 Ben. 347, Fed. Cas. 480, applying principle in setting aside decree dismissing libel in admiralty; Lovett v. State, 29 Fla. 398, 11 South. 178, 16 L. R. A. 315, vacating entry reversing decree of lower court where transcript upon which judgment based was shown to be erroneous; Gibson v. Chouteau, 45 Mo. 173, 100 Am. Dec. 368, granting motion to correct judgment improperly entered; Legg v. Overbagh, 4 Wend. 192, 21 Am. Dec. 117, holding that where error occurs in remitting cause to court below, higher court still retains jurisdiction and may reinstate cause; Chambers v. Hodges, 3 Tex. 529, vacating order for rehearing entered by mistake; Aetna Life Ins. Co. v. McCormick, 20 Wis. 269, setting aside decree of (359)

foreclosure obtained upon notice of five days instead of eight, as required by statute; Poole v. Nixon, 19 Fed. Cas. 993, arguendo.

Distinguished in Wetmore v. Karrick, 205 U. S. 154, 51 L. Ed. 750, 27 Sup. Ct. 434, holding clerical mistake as to judgment could not be corrected after term without notice; State v. Marsh, 134 N. C. 200, 204, 205, 67 L. R. A. 179, 47 S. E. 12, 13, 14, where on appeal from conviction judgment was reversed on ground that indictment as contained in record failed to show material allegation, which was in fact omitted by misprision of clerk, Supreme Court could after term grant certiorari for correction of record and reset case for hearing; Ex parte Sibbald v. United States, 12 Pet. 492, 9 L. Ed. 1169, denying power of court to reverse or annul its own final decree for errors of fact or law, after term in which it was rendered; Bank of U. S. v. Moss, 6 How. 38, 12 L. Ed. 334, denying power to annul such decree after term, even where want of jurisdiction shown, and holding judgment binding until reversed on error; Rice v. Railroad Co., 21 How. 85, 16 L. Ed. 32, and Phillips v. Negley, 117 U. S. 674, 29 L. Ed. 1015, 6 Sup. Ct. 905, holding that writ of error dismissed at one term cannot be reinstated on the docket at a later term, because writ, having expired by termination of that term, is functus officio; Jenkins v. Eldredge, 1 Wood. & M. 63, Fed. Cas. 7269, holding that terms of final judgment cannot be materially altered except on review, appeal, or error; Bissel etc. Co. v. Goshen etc. Co., 72 Fed. 553, 43 U. S. App. 47, ruling similarly; Mason v. Pearson, 118 Mass. 63, denying right of court to annul final decree in absence of mistake; King v. Ruckman, 22 N. J. Eq. 553, denying motion for rehearing on merits after final decree regularly entered.

Power of appellate court after remittitur. Note, 21 Am. Dec. 119. Practice and procedure governing transfer of causes to Federal Supreme Court for review. Note, 66 L. R. A. 851, 871.

On stipulation for property subject to process, stipulators are subject to all powers which court could exercise if property were in its custody.

Approved in The Vigilant, 175 Fed. 228, holding surety on bond to release vessel from libel could not by taking assignment of claim keep it alive as lien on vessel as against prior mortgage; The Wanata, 95 U. S. 611, 615, 24 L. Ed. 464, 466, holding stipulators liable only to amount stipulated; United States v. Ames, 99 U. S. 36, 25 L. Ed. 298, holding that question as to whether case is made for recall of property must be determined before final decree is rendered on bond; Munks v. Jackson, 66 Fed. 574, 29 U. S. App. 482, holding that where process has been issued against vessel, decree and execution may be awarded against stipulators without separate suit; The Frank Vanderkerchen, 87 Fed. 765, holding rule ap plicable where stipulation for value given without issuance of monition or seizure of vessel; Richardson v. Cleaveland, 5 Port. 268, holding that where stipulation is entered into and vessel released, lien acquired by seizure is thereby discharged and condemnation of property cannot be decreed; Mitchell v. Chambers, 43 Mich. 159, 5 N. W. 63, holding that judgment

against vessel may include stipulators as part of general adjudication; Bartlett v. Spicer, 75 N. Y. 532, holding that where stipulation is given in action in rem, recovery on it cannot be in personam; Lovering v. Insurance Co., 12 Pick. 365, arguendo.

Distinguished in The Oregon, 158 U. S. 206, 211, 39 L. Ed. 952, 954, 15 Sup. Ct. 812, 814, holding that where stipulation is given for particular suit, sureties are not liable to intervenors.

Limited in Braithwaite v. Jordan, 5 N. D. 207, 212, 31 L. R. A. 244, 246, 65 N. W. 704, 705, bond not limited for enforcement to court having jurisdiction of res, but may be enforced in any court having jurisdiction of action of debt.

Proceedings for condemnation of captures made by public armed vessels are in name and authority of United States.

Modified in Proceeds of Prizes of War, Abb. Adm. 497, Fed. Cas. 11,440, holding that where United States district attorney authorizes libel for condemnation to be filed by individual captors, the court will allow proceedings to be so conducted.

It is sufficient if a libel in rem for a forfeiture allege the offense in the words of the statute.

Cited in Cross v. United States, 1 Gall. 31, Fed. Cas. 3434, holding that in action for debt for penalty under embargo act, it was not necessary to allege particular articles composing cargo, nor that owner was knowingly concerned in illegal voyage; The Cherokee, 5 Fed. Cas. 549, holding that forfeiture cannot be enforced when averments in libel do not bring offense within provisions of statute; United States v. Arms, 24 Fed. Cas. 863, under facts similar to those in principal case; United States v. Distilled Spirits, 28 Fed. Cas. 122, holding insufficient, a general averment that statute has been violated.

In libel in rem for piratical aggressions, it is not necessary to allege or prove conviction of person for criminal offense.

Approved in Scow No. 36, 144 Fed. 934, 935, under 30 Stat. 1152, 1153, vessel used in depositing refuse matter in navigable waters is liable to penalties though act was without knowledge or intent of owners; The Bulley, 138 Fed. 172, vessel is liable for tortious act of her master or member of crew on board in her service by which another vessel is injured, though committed without authority or knowledge of the owners; Stout v. State, 36 Okl. 762, 765, 45 L. R. A. (N. S.) 884, 893, 130 Pac. 560, 561, holding statute providing both imprisonment and penalty for its violation did not put one violating it twice in jeopardy; United States v. Brig Malek Adhel, 2 How. 234, 11 L. Ed. 249, decreeing forfeiture of vessel for piratical acts of master, although owners innocent, and vessel had originally sailed with lawful purpose; Jecker v. Montgomery, 18 How. 116, 15 L. Ed. 314, ruling similarly where vessel seized for trading with enemy under charter-party, although owner innocent; Dobbin's Distillery v.

United States, 96 U. S. 400, 24 L. Ed. 638, holding property leased for distillery liable to forfeiture for illegal acts of lessee, although owner ignorant of such acts; Friedenstein v. United States, 125 U. S. 231, 31 L. Ed. 740, 8 Sup. Ct. 842, and Origet v. United States, 125 U. S. 247, 31 L. Ed. 747, 8 Sup. Ct. 850, holding that in proceedings for forfeiture of property for violation of revenue laws judgment need not recite finding of jury that acts charged were done with intent to violate laws; The Three Friends, 166 U. S. 50, 41 L. Ed. 914, 17 Sup. Ct. 497 (affirming 78 Fed. 175), where forfeiture of vessel for violation of neutrality held not to be dependent upon conviction of persons charged with doing acts prohibited (and see dissenting opinion, p. 71, 41 L. Ed. 921, 17 Sup. Ct. 505); United States v. Coal, 6 Biss. 391, Fed. Cas. 16,515, holding proceeding in rem for violation of revenue law not to be criminal proceeding, and hence the revenue law is not a penal statute to be strictly construed; The Steamer Missouri, 3 Ben. 517, Fed. Cas. 9652, holding that in proceedings for forfeiture of vessel under statute providing penalty for entering goods without manifest, prior seizure need not be alleged; Virginia etc. Co. v. United States, Taney, 421, Fed. Cas. 16,973, holding forfeiture of vessel for violation of navigation laws not to be dependent upon proceedings against owners; The Ambrose Light, 25 Fed. 415, decreeing forfeiture of vessel sailing under rebel commission, although officers and crew discharged; United States v. Sills, 47 Fed. 497, 499, holding that conviction under revenue laws for illicit distilling, whereby person is fined and imprisoned, does not bar proceeding in rem for forfeiture of property; United States v. Olsen, 57 Fed. 584, holding forfeiture of vessel for landing of Chinese in violation of exclusion act, cannot be pleaded in bar to indictment against owner; The Meteor, 17 Fed. Cas. 182, holding that forfeiture of vessel seized for violation of neutrality is not dependent upon conviction of person accused of arming her; United States v. Hall, 26 Fed. Cas. 78, holding railroad property liable to forfeiture where company had notice that private persons were carrying letters over road in violation of postal laws; Our House v. State, 4 G. Greene, 176, holding that indictment against house as "dram-shop and nuisance," under code, need not aver that owner knew of illegal use of property; Williams v. Delano, 155 Mass. 14, 28 N. E. 1123, refusing to entertain action of conversion against officer seizing property while proceedings for forfeiture were pending; The John G. Stevens, 170 U. S. 121, 42 L. Ed. 973, 18 Sup. Ct. 547, arguendo.

Distinguished in Coffey v. United States, 116 U. S. 443, 29 L. Ed. 687, 6 Sup. Ct. 440, holding that where forfeiture of property has been decreed in action in rem under revenue laws, acquittal in criminal action is conclusive in favor of claimant in action to recover such property; United States v. Athens Armory, 2 Abb. (U. S.) 143, Fed. Cas. 14,473 (see 35 Ga. 357), holding that grant of "pardon and amnesty" to person, barred judgment of condemnation of property used for purpose of manufacturing arms for Confederate government; The Sidonian, 38 Fed. 441, 443, holding that until fine has been imposed on master under statute, for not providing certain equipment, a libel against vessel for such fine cannot be main