CHAPTER III.

OF APPEALS GENERALLY.

By an appeal, the judgment and decree of the court are suspended; and the whole cause, both as to its law and its fact, is to be heard de novo in the appellate court. Nor is the cause a res adjudicata, until the final sentence of the appellate court. Any statute, therefore, which is passed before such final decree, is to be considered, and if the case before the court arose on a statute which is repealed 2 or expires by its own lim

1 Anonymous, 1 Gallis. 22. It was held in this case that the circuit court had authority to allow amendments in revenue cases or proceedings in rem brought by appeal from the district court. In Gloucester Ins. Co. v. Younger, 2 Curtis, C. C. 322, 335, the case came before the circuit court under an agreement that the decision of the district judge should be final on all questions of fact, and that no evidence should be introduced in the appellate court except the opinion of the district judge, or a statement of facts made thereon; but that all questions of law from facts proved, were to be open on appeal. Mr. Justice Curtis disapproved of this course and offered to discharge the agreement, but as neither party desired it, he determined the case on the agreement, although he stated that he had encountered much embarrassment in doing so, and should execute a similar agreement afterwards with much reluctance, if at all.

* An interesting case which finally turned on this point occurred in Louisiana. The Act of Congress of March 2, 1807, 2 U. S. Stats. at Large, 428, passed for the prevention of the slave-trade, directed that any vessel hovering about and intending to land negroes on the coast of the United States, should be forfeited, and the negroes delivered to any persons appointed by the several States for the purpose of disposing of them. The Josefa Segunda was libelled under this act, and the cargo of negroes delivered to the sheriff of Louisiana, in accordance with a statute of that State, which was passed in pursuance of the act of Congress, and which also directed that one half the proceeds of the sale of such negroes should be delivered to the treasurer of the Charity Hospital at New Orleans, and one half to the commanding officer of the capturing vessel, meaning the public vessel contemplated by the act of Congress. In 1820, the final decree of condemnation was pronounced in the Supreme Court. 5 Wheat. 338. In the mean time, the sheriff, by the consent of all parties, had sold the negroes and lodged the proceeds in the United States Bank, subject to the order of the court below. To the proceeds of this sale there were seven claimants, none of whom fell within the description, in the statute of Louisiana, of the individuals who should be entitled

itation1 before the final decree is passed, the case is at an end. But if the property does not follow the case, the court in whose

to them. Their claims were, therefore, rejected by the Supreme Court, in 1825. 10 Wheat. 312. As to the proceeds of the sale of the vessel, the court said, 10 Wheat. 331, 332, "Upon the best consideration which we have been able to give the case, we are of opinion that it is a casus omissus, or rather that all the beneficial interest vests in the United States. . . . . The remarks which have already been made, dispose of the case as far as respects the proceeds of the vessel; and we think they are decisive as to the claim to the proceeds of the sale of the negroes. The case, as to this matter, is also a casus omissus in the act of Louisiana."

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In 1830, the case came up again, nom. United States v. Preston, 3 Pet. 57, on "appeal from so much of the decree of the court below as awarded to the State of Louisiana, the proceeds of the sales of certain slaves." The court said, "that as the final condemnation in this court took place March 13, 1820, and as previous to that time was passed the act of March 3, 1819 (3 U. S. Stats. at Large, 450 and 532), by which a new arrangement is made as to the disposal of persons of color, seized and brought in under any of the acts prohibiting the traffic in slaves, the power to deliver them to the order of the States was taken away before the final decree of this court." Then, according to the principle of Yeaton v. United States, 5 Cranch, 281, if they had been specifically before the court at the date of that decree, they must have been delivered, not to the State according to the act of 1807, but to the United States, according to the act of 1819. But they had already been sold, and the court said: "We would not be understood to intimate that the United States are entitled to this money, for they had no power to sell. Nor do we feel bound to remove the difficulties which grow out of this state of things." This was indeed a curious case. The slaves were sold by consent of the parties, before final condemnation of the vessel. The disposal of them was in violation of the law regulating such matters at the time of the decree. The sheriff, therefore, acted wrongfully, but was not liable to anybody, as he had only converted forfeited property into another form. But, under the laws relating to the slave-trade, there was no one who could claim this money; neither the State of Louisiana nor the claimants, for so the court decided; not the United States, for there is no law by which the United States receives the price of slaves; not the slaves themselves, of course. The $65,000 deposited by the sheriff of the parish of New Orleans in the United States Bank lies there yet (or its remains lie there), so far as we know or can infer from the law.

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1 In Yeaton v. United States, 5 Cranch, 281, Marshall, C. J., said: "In admiralty cases, an appeal suspends the sentence altogether, and it is not res adjudicata until the final sentence of the appellate court is pronounced. The cause in the appellate court is to be heard de novo, as if no sentence had been passed. In prize causes, the principle has never been disputed, and in the instance court, it is stated in 2 Browne's Civil Law, that in cases of appeal it is lawful to allege what has not before been alleged, and to prove what has not before been proved. The court is, therefore, of opinion that this cause is to be considered as if no sen

custody it remains may always make any proper and necessary order respecting it.1

Questions have arisen as to the effect of joinder of parties on the right of appeal. The statute defines the amount which gives the right; and in suits for torts, unless an ad damnum be claimed equal to the amount which gives the right of appeal, that right does not exist. But in admiralty, parties are permitted to join, for convenience and economy, whose rights and interests are so distinct and independent that they could not be joined at common law. And it seems to be now settled that no party can appeal, unless he has, himself, and separately from others, a claim, or unless the opposite party has recovered against him, separately, an amount which, by itself, is equal to that which, by the terms of the statute, gives the right of appeal. Thus, all the crew of a ship may join in libel for wages; but only he whose claim exceeds fifty dollars, separately considered, can appeal to the circuit court; and only he whose claim exceeds two thousand dollars can appeal thence to the Supreme Court.2 And where several libels were filed by shippers of cargo to recover for damages done to their goods, and the actions were ordered to be consolidated by the court, it was held that the interests of the parties were distinct, and no appeal would lie, except where the separate amount demanded by each libellant exceeded two thousand dollars. When, however, many libellants join in one libel, and their interests are joint, although not coequal, then an appeal lies, if the total amount exceed the sum required by the statute, although the amounts which would belong to each one is less. If a suit is brought tence had been pronounced; and if no sentence had been pronounced, it has long been settled, on general principles, that after the expiration or repeal of a law no penalty can be enforced nor punishment inflicted for violations of the law committed while it was in force, unless some special provision be made for that purpose by statute." See also United States v. Ship Helen, 6 Cranch, 203; Schooner Rachel v. United States, 6 Cranch, 329.

3

1 The Grotius, 1 Gallis. 503, per Story, J.; The Collector, 6 Wheat. 194.

2 Oliver v. Alexander, 6 Pet. 143.

Rich v. Lambert, 12 How. 347.

Shields v. Thomas, 17 How. 3. In this case, the representatives of a person deceased claimed, under a bill in equity, moneys which Shields, the administrator, had converted to his own use. The complainants filed a bill in the Chancery Court of Kentucky, and obtained a decree which exceeded $2,000, the portion due each complainant being decreed to him separately, and being less than

against certain goods for freight, and two or more persons appear as claimants and give a joint bond, but each claims different parcels, and a decree is rendered against each one separately for the freight of the goods claimed by each, the rights of each are distinct and independent, and only those who are obliged to pay more than the sum specified in the statute, exclusive of costs, can appeal. And if the whole of the freight is jointly decreed against $ 2,000. A motion was made to dismiss the bill, because "the sum due each complainant is severally and specifically decreed to him, and that the amount thus decreed is the sum in controversy between each representative and the appellant" (Shields).

But the court held, "that the matter in controversy in the Kentucky court was the sum due to the representatives of the deceased collectively, and not the particular sum to which each was entitled when the amount was distributed among them, according to the laws of the State. They all claimed under one and the same title. They had a common and undivided interest in the claim, and it was perfectly immaterial to the appellant how it was to be shared among them. He had no controversy with either of them on that point; and if there was any difficulty as to the proportions in which they were to share, the dispute was among themselves and not with him. It is like a contract with several to pay a sum of money. It may be that the money, when recovered, is to be divided between them in equal or unequal proportions. Yet, if a controversy arises on the contract, and the sum in dispute upon it exceeds two thousand dollars, an appeal would clearly lie to this court, although the interest of each individual was less than that sum."

The court commented on the above cases as follows: "The case of Oliver v. Alexander, 6 Pet. 143, was a suit for seamen's wages. And although the crew are allowed by law, for the sake of convenience and to save costs, to join in a suit for wages, yet the right of each seamen is separate and distinct from his associates. His contract is separate, and his recovery does not depend upon the recovery of others, but rests altogether upon its own evidence and merits. And he does not recover a portion of the common fund to be distributed among the claimants, but the amount due to himself on his own separate contract. The case of Rich v. Lambert, 12 How. 347, was decided on the same ground. The several shippers who owned the goods which had been damaged had no common interest in the goods. The interest of each was separate, and his contract of affreightment was separate. And the libel of each was upon his own contract with the ship-owner, and for his individual and separate property. The cases of Stratton v. Jarvis, 8 Pet. 4, and Spear v. Place, 11 How. 522, were both salvage cases, where the property of each owner is chargeable with its own amount of salvage. The salvage service is entire; but the goods of each owner are liable only for the salvage with which they are charged, and have no common liability for the amounts due from the ship or other portions of the cargo. It is a separate and distinct controversy between himself and the salvors, and not a common and undivided one, for which the property is jointly liable."

the claimants, all should join in an appeal. In respect to salvage claims, it has been decided that an appeal will not lie to the Supreme Court where the amount of salvage due from any one owner of the property saved is less than two thousand dollars, although the whole amount due exceeds that sum. In other words, although the suit may be in rem against all the property saved, yet the rights and liabilities of each owner are separate and distinct.2 But we should be inclined to hold that the interests of salvors were so far joint that they might all appeal, if their united interest amounted to the requisite sum, provided the amount due from any one owner of the property saved was sufficient.3

If, however, the libellants in salvage formed two or more distinct sets or bodies, who performed distinct services and had distinct demands, they would not be regarded, we should presume, in the case of appeal, as one, although they joined in one libel; for they ought properly, and perhaps would be required, to file several libels, only those joining who rest on a community of service, of merit, and of demand.

Where several libels are filed for salvage against a vessel, and decrees are entered for all the libellants, and one appeals, his appeal may affect collaterally the other decrees, as if, for instance, the vessel of the appellant was entitled to the entire amount of salvage decreed, and not merely one third, as determined by the inferior court.4

It is said to be always prudent, if one party appeals, for the other party to appeal also. For if he do not, and it should happen that the appellate court thought him entitled to a more favorable

1 Clifton v. Sheldon, 23 How. 481.

2 Stratton v. Jarvis, 8 Pet. 4; Spear v. Place, 11 How. 522.

This precise point has not yet been decided, but it would seem to fall within the principle adopted in the case of Shields v. Thomas, 17 How. 3, cited supra. See Marvin on Wreck and Salvage, § 253, 254, where the very learned author comes to the conclusion, that although the rights and interest of the salvors are separate and distinct, because "payment to one, or a release or forfeiture of the interest of one, being no bar to the recovery of the others," yet that they should be considered "as possessing a quasi joint interest for the purposes of appeals, and that they may appeal whenever their united demand against any single claimant equals the sum required by law to authorize an appeal."

The Island City, 1 Black, 121. This was so stated by the court, but, as the appeal was dismissed, the manner in which the decree would be affected does not appear.