Dennis v. The Lear , 7 F. Cas. 476 ( 1805 )

BEE, District Judge

The questions for me to determine are, 1st. Whether the provisional order for sale was sufficient to change the property. 2d. Whether the do cree of condemnation can be reconsidered in this court, and altered and revised by me.

Nothing is more common in courts of civil law than interlocutory orders and decrees,' which, if subsequently, confirmed by a definitive sentence, have.-never been called in question. Sales under such orders are frequent; especially of articles of a perishable nature. This seems to have been the case here, and I do not think that the propriéty of the proceeding can be questioned by me. The decree of condemnation expressly ratifies the sale, and condemns both vessel and cargo as the property of enemies, according to their own previous regulation as to trade with the revolted negroes. How far they were justified in making such a rule is, in my opinion, a matter of executive or legislative interference. I do not consider this court as competent to reverse the sentence of a foreign court where the property is condemned as belonging to enemies: it would lead to a right of appeal from such decisions, and would be highly improper. On this principle I decided the case of Sheaf and Turner [Case No. 12,730]; that decree was affirmed on appeal; and must therefore be considered as a precedent. The case of Rose and Himely [Id. 12,047, 12,048] differed altogether from tiie present There the condemnation is expressly declared to be in pursuance of an arreté, passed subsequent to the capture. The decree was founded in error apparent on the face of it, for a law not in existence could not be infringed. The property, too, was in the hands of the marshal of this court, as belonging to the original owner, previously to the sentence of condemnation; nor had an order for sale ever been made. In Rose and Himely, the trade to Hispaniola was not interdicted till after the capture; in the present case the French arrete had been published in all the American papers many months before. This was so well understood that most of the vessels engaged in this trade went armed, or under convoy of others that were armed; and it appears from the libel that the Lear knew the risque she ran, and went from the Cape to Port de Paix expressly for the purpose of sailing with armed ships from that place. Insurance had risen considerably upon risques like the present, when the Lear sailed; which was not the case as related to the voyage in Rose and Himely.

Upon the whole I think myself bound in the present instance by the sentence at (ruadaloupe. the court there being competent to the condemnation of property as belonging to their enemies, under regulations that existed before the condemned voyage was undertaken. I dismiss the libel, with costs, subsequent to the filing of the sentence of condemnation.