1818.

Gelston

V.

Hoyt.

racter of the ship. No charter-party, no original correspondence, nothing, in fact, but those formal papers which never fail to accompany a fictitious, as well as a real, transaction. On the contrary, we find the captain, without any instructions from his supposed owners, submitting implicitly to the orders of Bennet & Co. in every thing; and the latter assuming even a control over the contract which he exhibits with his supposed owner in Riga, and expressing a solicitude about his expenses, which could only have been suggested by a consciousness that the house of B. & Co. would have to pay those expenses. Upon the whole, we are satisfied that it is a case for condemnation both of ship and cargo.

Decree affirmed.

(CONSTITUTIONAL AND COMMON Law.)

GELSTON et al. v. HOYT.

Under the judiciary act of 1789, ch. 20. s. 25. giving appellate juris. diction to the supreme court of the United States, from the final judgment or deeree of the highest court of law or equity of a state, in certain cases, the writ of error may be directed to any court in which the record and judgment on which it is to act may be found; and if the record has been remitted by the highest court, &c. to another court of the state, it may be brought by the writ of error from that court.

The courts of the United States have an exclusive cognizance of the questions of forfeiture upon all seizures made under the laws of the

United States, and it is not competent for a state court to entertain or decide such question of forfeiture. If a sentence of condemnation be definitively pronounced by the proper court of the United States, it is conclusive that a forfeiture is incurred; if a sentence of acquittal, it is equally conclusive against the forfeiture; and in either case, the question cannot be again litigated in any common law forum.

Where a seizure is made for a supposed forfeiture, under a law of the
United States, no action of trespass lies in any common law tribu-
nal, until a final decree is pronounced upon the proceeding in rem
to enforce such forfeiture; for it depends upon the final decree of
the court proceeding in rem whether such seizure is to be deemed
rightful or tortious, and the action, if brought before such decree
is made, is brought too soon.

If a suit be brought against the seizing officer for the supposed tres-
pass while the suit for the forfeiture is depending, the fact of such
pendency may be pleaded in abatement, or as a temporary bar of the
action. If, after a decree of condemnation, then that fact may be
pleaded as a bar; if after an acquittal, with a certificate of reason-
able cause of seizure, then that may be pleaded as a bar. If, after
an acquittal without such certificate, then the officer is without any
justification for the seizure, and it is definitively settled to be a tor-
tious act. If to an action of trespass in a state court for a seizure,
the seizing officer plead the fact of forfeiture in his defence without
averring a lis pendens, or a condemnation, or an acquittal with a cer-
tificate of reasonable cause of seizure, the plea is bad; for it at-
tempts to put in issue the question of forfeiture in a state court.
At common law any person may, at his peril, seize for a forfeiture to
the government, and if the government adopt his seizure, and the
property is condemned, he is justified. By the act of the 18th of
February, 1793, ch. 8. s. 27. officers of the revenue are authorized
to make seizures of any ship or goods for any breach of the laws of
the United States.

The statute of 1794, ch. 50. s. 3. prohibiting the fitting out any ship,

&c. for the service of any foreign prince or states, to cruise against the subjects, &c. of any other foreign prince or state, does not apply to any new government, unless it has been acknowledged by the United States, or by the government of the country to which such new state belonged. And a plea which sets up a forfeiture under that act in fitting out a ship to cruise against such new state, must aver such recognition, or it is bad.

A plea justifying a seizure under this statute need not state the parti

1818.

Gelston

V.

Hoyt.

1818.

Gelston

V.

Hoyt.

cular prince or state by name, against whom the ship was in-
tended to cruise.

A plea justifying a seizure and detention by virtue of the 7th section of
the act of 1794, under the express instructions of the president, must
aver that the naval or military force of the United States was employ-
ed for that purpose, and that the seizor belonged to the force so em-
ployed. The 7th section of the act was not intended to apply except
to cases where a seizure or detention could not be enforced by the
ordinary civil power, and there was a necessity, in the opinion of the
President, to employ naval or military power for this purpose.
To trespass for taking, and detaining, and converting property, it is
sufficient to plead a justification of the taking and detention; and
if the plaintiff relies on the conversion, he should reply it by way of
new assignment.

A plea alleging a seizure for a forfeiture as a justification, should not
only state the facts relied on to establish the forfeiture, but aver
that thereby the property became, and was actually, forfeited,
and was seized as forfeited."

ERROR to the court for the trial of impeachments and correction of errors of the State of New-York. This cause had been removed into that court by the present plaintiffs in error, by writ of error directed to the supreme court of the said state. In January, 1816, the court of the state of New-York for the correction of errors in all things affirmed the judgment which had been rendered by the supreme court of the state of New-York, in favour of Hoyt, the present defendant in error. And before the coming of the writ of error issued from this court, the said court for the correction of errors of the state of New-York, according to the laws of the state of NewYork, and the practice of that court, had remitted the record, which had been removed from the supreme court of the state of New-York, to the said supreme court, with a mandate thereon requiring the

supreme court of the state of New-York, to execute the judgment, which had been so rendered by it in favour of the defendant in error. And the said record having been so remitted, the court of errors of the state of New-York upon the coming of the said writ of error from this court, made the following return thereto : "State of New-York, ss. The president of the senate, the senators, chancellor, and judges of the supreme court, in the court for the trial of impeachments and the correction of errors, certify and return to the supreme court of the United States, that before the coming of their writ of error, the transcript of the record in the cause, in the said writ of error mentioned, together with the judgment of this court thereon, and all things touching the same, were duly remitted in pursuance of the statute instituting this court, into the supreme court of judicature of this state, to the end that farther proceedings might be thereupon had, as well for execution as otherwise, as might be agreeable to law and justice; and in which supreme court of judicature, the said judgment, and all other proceedings in the said suit, now remain of record; and as the same are no longer before, or within the cognizance of this court, this court is unable to make any other or farther return to the said writ. All which is humbly submitted." Thereupon the counsel for the plaintiffs in error made an application to the supreme court of the state of NewYork, to stay the proceedings upon the said judgment, till an application could be made to this court in respect to the said writ of error. To avoid this delay, the counsel under the advice or suggestion of the

1818.

Gelston

V.

Hoyt.

1818.

Gelston

V.

Hoyt.

judges of the said supreme court of the state of NewYork, entered into the following agreement, viz. "It is agreed, between the attorneys of the abovenamed plaintiffs and defendant in error, that the annexed is a true copy of the record and bill of exceptions, returned by the supreme court of the state of New-York, to the court of errors of the said state, and remitted by the said court of errors, in the affirmance of the judgment of the said supreme court to the said supreme court. And that the said copy shall be considered by the said supreme court of the Uni→ ted States, as a true copy of the said record and bill of exceptions, and shall have the same effect as if annexed to the writ of error in the above cause from the said supreme court of the United States, and that the clerk of the supreme court of the state of New-York transmit the same, with this agreement to the clerk of the supreme court of the United States, and that the same be annexed by the said clerk of the supreme court of the United States, to the said writ of error, as a true copy of the said record and bill of exceptions."

Record and Bill of Exceptions.

City and County of New-York, ss. Be it remembered, that in the term of January, in the year of our Lord one thousand eight hundred and thirteen, came Goold Hoyt, by Charles Graham, his attorney, into the supreme court of judicature of the people of the state of New-York, before the justices of the people of the state of New-York, of the supreme court of judicature of the same people, at the capitol, in the city of Albany, and impleaded David Gelston and Peter A. Schenck, in a certain plea of trespass,