VOL. 2. interposed; or if it required the statement of the evidence to be drawn up and served within four days after the interposition of an appeal, instead of four days after the passing of the decree appealed from, it would be unobjectionable(a). By some such means as those above indicated the circuit courts are undoubtedly authorized, and even required, to provide for the exigencies of the case but I humbly conceive that they have no authority to substitute a new mode of proof. The mention of "depositions," in the act of 1803, in the enumeration of the documents to be transmitted to the Supreme Court, in no degree affects the question. Depositions taken de bene esse under the 30th section of the Judiciary Act, or, when the witnesses reside abroad, under a commission, to prevent the failure or delay of justice, often form a part of the evidence in the circuit court, and it is doubtless these that Congress had in view. It is very desirable that some suitable and uniform practice in this respect should be introduced in the several circuits; and it is to be regretted that the Supreme Court did not think proper to supply this deficiency in prescribing the new Rules (a) Appeals from the decrees of the circuit courts, it will be remembered, may be interposed at any time within five years; while this rule is well adapted only to appeals required to be taken instanter, or at longest within four days. It would seem to be more suitable, also, that the rule on this subject, whatever it may be, should be prescribed by the Supreme Court; not only because it belongs to that court to determine what shall be deemed a sufficient compliance with the law requiring the evidence to be returned on appeal, but for the sake also of uniformity. of Practice in admiralty causes, under the very CHAP. 13. plenary authority conferred upon that court by the act of 1842(a). With respect to suits in equity, this has been done by the new Rules of Equity Practice, and it is not too late to provide by a supplemental rule for cases in admiralty. THE DECREE. When a decree in favor of the libellant is simply affirmed, the decree of the court below stands as the decree of the appellate court; when it is reversed in toto, the decree of the appellate court is that the libel be dismissed; and when it is neither wholly affirmed nor reversed, but modified, a new decree is made in conformity with the judgment of the court: when a decree in favor of the respondent (a) Act of August 23, 1842, ch. 188, § 6; 5 Stat. at Large, 516. The extraordinary powers conferred by this section, furnish a striking illustration of the public confidence that had been reposed in the Supreme Court of the United States, and is on this account sufficiently interesting to justify its quotation. It is as follows: “And be it further enacted, That the Supreme Court shall have full power and authority, from time to time, to prescribe and regulate, and alter the forms of writs and other process to be used and issued in the district and circuit courts of the United States, and the forms and modes of framing and filing libels, bills, answers, and other proceedings and pleadings in suits at common law or in admiralty, and in equity, pending in the said courts; and also the forms and modes of taking and obtaining evidence, and of obtaining discovery, and generally the forms and modes of proceeding to obtain relief, and the forms and modes of drawing up, entering and enrolling decrees, and the forms and modes of proceeding before trustees appointed by the court; and generally to regulate the whole practice of the said courts, so as to prevent delays, and to promote brevity and succintness in all pleadings and proceedings therein, and to abolish all unnecessary costs and expenses in any suit therein." Form of the decree. VOL. 2. Decree to be Decrees, how enforced. Whether there can be a trial by peal, in or libellee is affirmed, the decree of the court below stands as the decree of the appellate court; and where it is reversed, a new decree in favor of the libellant is made. It is expressly declared by statute, that "in all cases which, by appeal or writ of error, are or shall be removed from a district to a circuit court, judgment shall be rendered in conformity to the opinion of the judge of the Supreme Court presiding in such circuit court(a)." The decree of the circuit court on appeal, whatever it may be, is enforced in that court; but the decrees of the Supreme Court are carried into effect by the court below, in pursuance of a special mandate directing it to conform its decree to that of the Supreme Court(b). A question of some importance may arise, with jury on ap respect to appeals in suits depending upon the act extending the admiralty remedies to certain cases upon the lakes and navigable waters connecting the cases aris ing under the act of Feb. 26, 1845. (a) Act of April 29, 1802, ch. 31, § 5; 2 Stat. at Large, 156. It would follow from this provision, if, indeed, it did not, as it doubtless would, from the nature of the case, that an appeal to the circuit court cannot be heard in the absence of the judge of the Supreme Court; although the court may be lawfully held, for the exercise of all its original jurisdiction, by the judge of the district court alone. Since the passage of the act (rendered necessary, as it must have been supposed, by the increase of litigation) relieving the judges of the Supreme Court from the duty of being present at more than one of the terms of the circuit court annually held in their respective districts, the remedy by appeal is, therefore, unhappily, often attended with serious delay. (b) Act of September 24, 1789, ch. 20, § 24; 1 Stat. at Large, 73; Reports of the Decisions of the Supreme Court and Circuit Courts passim. same(a), to which it may not be amiss briefly to ad- CHAP. 12. vert, though it may not be discreet to express any decided opinion upon it. This act, as we have seen, gives "to the parties the right of trial by jury, of all facts put in issue in such suits, where either party shall require it;" and the question above alluded to is, whether this provision is applicable to trials in the circuit court on appeals from the district court. The terms of the act being indefinite with respect to this point, the question must be decided upon general principles. The right of appeal might have been withheld altogether, and might, therefore, have been given subject to such conditions as Congress might have seen fit to prescribe. The course actually adopted was, to leave the whole subject to legal intendment. The right of appeal itself rests upon inference; and there seems, therefore, to be ground for holding that it can be exercised, in the instances under consideration, only in conformity with the conditions which pertain to it in ordinary cases. It may possibly be supposed that the right of trial by jury in the appellate court depends upon the form of trial in the court below. No sound reason is preceived, however, for any such distinction. (a) Act of February 20, 1845, ch. 20; 5 Stat. at Large, 726. VOL. 2. vessel re mains in custody. CHAPTER XIII. FINAL PROCESS. I. IN SUITS IN REM. 1. When the By far the larger proportion of suits in the admiralty are suits in rem, in which, as the reader is well aware, the vessel or other property is arrested in virtue of an asserted lien, and held as a security for the demand of the libellant. It is to this property, therefore, that he looks for satisfaction; and if it remains in the custody of the law until he obtains a decree in his favor, unless the sum awarded by the decree is paid immediately, or, in appealable cases, within ten days, or within such other short period as may be allowed by the decree, he is entitled to have the property sold, and the proceeds thereof applied to the payment of the amount decreed. The process for this purpose, in the English admiralty, is denominated a Decree of Sale. In this country it is, I imagine, commonly called a Venditioni Exponas. It contains a simple command to the marshal absolutely to sell the specific property arrested, and to pay the proceeds of the sale into court(a). (a) To one familiar only with the forms of procedure in courts of common law, it may seem oppressive to direct the sale of a valuable |