Brewster v. Gelston. no information, nor saw any thing to excite a suspicion while on board, that the Rambler was violating any law of the United States. The Rambler came up to New-York, where she was seized on the 9th day of March, and on the 16th a libel was filed against her. The seizure was made in consequence of information given to the surveyor, Schenck, by two of her seamen, Burnham and Lovis, and their testimony was very material in procuring her condemnation. There was no evidence offered at the trial, to show that the seizure was made in consequence of information given by the plaintiff. The only attempt made to show this, was by the testimony of Smith, second mate of the Active, who stated, that the defendant had admitted in conversation, that the Rambler was a prize of the Active, and that her officers would be entitled to a share of the forfeiture if the Rambler should be condemned. He also, and a witness by the name of Clark, testified that Burnham and Lovis had admitted, that they first gave the information of the Rambler's illegal proceedings to the plaintiff. But the testimony of Cahoone, Schenck, Burnham, and Lovis, and documents produced on the trial, and the absence of the plaintiff, showed that this was not the fact, and that the plaintiff did not give the information to the Collector. It appeared, however, that the plaintiff made exertions to detain Burnham and Lovis, until the trial of the Rambler, and kept them on board his vessel for that purpose; and was instrumental finally, in procuring their attendance as witnesses. It appeared however, that Schenck made equal exertions for these purposes. The jury found a verdict for the plaintiff, for 2259 dollars and 94 cents, the share of the forfeiture to which he would have been entitled, had the information been given by him. The defendant's counsel, excepted to the charge to the jury, which is fully stated in the following opinion of the Court, and the bill of exceptions Brewster v. Gelston. was now argued on a motion for a new trial, for misdirection of the Court, and because the verdict was against evidence. T. A. EMMET and C. GRAHAM for the plaintiff. D. B. OGDEN and C. BALDWIN for the defendant. THOMPSON, J. It has been made a preliminary question, whether this Court can hear an argument upon the bill of exceptions taken in this cause. The defendant's counsel consider the case, as coming within the practice of the Supreme Court of this state, under a statute, which requires, that a bill of exceptions taken upon the trial of a cause, shall be heard and decided upon in the Supreme Court, before a writ of error is brought. This view of the practice of this Court, is however not correct. The judiciary act of 1789 gives to the Courts of the United States power to make and establish all necessary rules for conducting business in said Courts. It has been repeatedly decided by the Supreme Court, that the 34th section of this act, which requires that the laws of the several states shall be regarded as rules of decision in trials at common law in the Courts of the United States, in cases where they apply, does not extend to, or regulate the practice of the Courts. The act of Congress usually called the process act, passed about the same time, and the subsequent act of May, 1792, upon the same subject, adopt as the practice of the Courts of the United States, in cases at common law, the modes of proceeding then in use in the Supreme Courts of the several states, subject to such alterations as the said Courts respectively shall in their discretion deem expedient, or to such regulations as the Supreme Court of the United States shall a 1 R. L. 319. d 2 Vol. I. U. S. 299. b 2 Vol. L. U. S. 63. § 17. c 2 Vol. L. U.S. 72. Brewster v. Gelston. think proper from time to time, by rule, to prescribe to any Circuit or District Court concerning the same. It is understood that at an early period, soon after the organi zation of the Courts of the United States, the Judges of the Circuit Courts adopted the practice of the State Courts. This was at a time when the English practice prevailed pretty generally; at all events in this state. And it is believed, that it has not been the course of the Circuit Courts, to change from time to time their practice, so as to conform to the State Courts, without first adopting it by rule. It does not appear that any rule on the subject has been at any time made by this Court. Had judgment been entered upon the verdict, in the term when the cause was tried, I should consider it irregular, and entirely useless to hear an argument upon this bill of exceptions; because this Court would have no authority to set aside such judgment. But it appears, that there was an order to stay proceedings, and no judgment has been entered. 1 do not therefore see any objections to hearing an argument, as upon a motion for a new trial. A bill of exceptions can, technically, only be used on a writ of error: but there can be no good reason why it should not be received as a substitute for a case, showing what took place upon the trial, and as a statement of facts upon which the motion for a new trial is to be founded. Considering the case therefore in this light, it is contended, on the part of the defendant, that a new trial ought to be granted. 1st. For misdirection of the Judge; and, 2d. Because the verdict is against evidence. If the bill of exceptions taken in this case presented for the consideration of the Supreme Court the construction of the various acts of Congress that have been referred to on the argument, it might be deemed expedient to permit judg Brewster v. Gelston. ment to be entered, and to have the cause brought up at once upon a writ of error, as it is probable from what fell from the counsel, that the parties would not be satisfied short of such an appeal. But it does not appear to me, that these questions are presented by the bill of exceptions. It has been contended on the part of the plaintiff, that the officers of revenue cutters do not stand on the same footing with other informers as to the information given, which shall entitle them to a portion of the penalty or forfeiture. But that the po licy, true intent, and meaning of the various laws on this subject, place them on more advantageous ground. That they are not to be considered as officers or servants under the Collector, but have independent powers, and are to have their vigilance excited, and rewarded by those extra allowances of a portion of the forfeiture, as much as the custom-house officers. That they have power to seize, independent of the direction or authority of the Collector; and that a distinction is warranted by the different provisos in the 91st section of the collection law, under which the plaintiff's claim in this case is set up. But the bill of exceptions presents no such questions, nor calls upon the Supreme Court to express any opinion upon them. That Court is not required to go beyond the question of law, raised by the bill of exceptions, or to decide any thing more than whether the Court erred in its opinion upon each question of law. How stands the present case? No objection arose as to the admission or rejection of evidence, which being closed, the defendant's counsel insisted generally, that upon the evidence the plaintiff was not entitled to recover, and called upon the judge so to charge the jury. The plaintiff's counsel insisted, that he was entitled to recover upon the said evidence, and requested the Judge so to charge the jury. On neither side was the Judge called upon for any special direction to the jury, or to express any e 3 Vol. L. U. S. 223. opinion upon any Brewster v. Gelston. question of law, or the construction of any act of Congress. And the only direction given by the Judge to the jury, was, that if they were satisfied that the commanding officer of the revenue cutter gave or sent to the Collector, information, that the Rambler had come from St. Bartholomew's, having on board a cargo which was probably the produce of a British island, and that she was bound to Amboy under suspicious circumstances, and contrary to the original destination, as appeared on the papers, and that he had therefore put a prize-master on board; and that such information led to a seizure of the vessel and cargo-in such case the plaintiff was entitled to recover. To this direction, the defendant could certainly make no objection. It was calling upon the plaintiff to make out all that could be reasonably required of him, under the most rigid construction of the law. It was requiring the jury to be satisfied, that the commanding officer of the revenue cutter gave material information to the Collector; that he had, in consequence of what he discovered, put a prize-master on board, and sent up the Rambler; and that such information led to a seizure of the vessel. If the evidence warranted the jury in answering affirmatively to these several points of inquiry, there cannot possibly exist a doubt but the plaintiff would be entitled to recover. The seizure in such case would be deemed to be made by him, and he be held responsible for the act. I cannot, therefore, discover any ground to sustain the motion for a new trial, on the ground of any misdirection of the Judge as to the law of the case. 2. But it appears to me, that the verdict cannot be sustained on the other ground, upon which the motion is rested. Were the testimony nearly balanced, I should be disinclined. to disturb the verdict. But it appears to me, that the verdict is so obviously and palpably against evidence, that it would be surrendering all control over verdicts on this |