Woodson v. Fleet.

citizen of the State against other citizens of the State; and involved, apparently, no question arising under the constitution and laws of the United States. It was removed from the State court into this court by an order of the circuit court of Rockingham county, in supposed conformity with the acts of Congress providing for such removal of certain suits for acts done in obedience to the orders of the national authorities during the recent war.

We are to inquire whether the suit thus removed is one of those for the removal of which provision has been made by Congress. If not, it is clear we have no jurisdiction of it, and it must be remanded to the court from which it came.

Two modes of removal were provided by the acts of March 3, 1863, 12 Stat. at L. 756, and May 11, 1866, 14 Id. 46,-one by transfer before verdict, another by appeal after judgment. It is not necessary here to consider the second mode. The first, under the act of 1863, was a proceeding by petition of the defendants, filed after entering an appearance; or if appearance had been entered prior to the date of the act, then at the next session of the court. Under the act of 1866, the proceeding for removal might be resorted to at any time before the impanneling of a jury to try the

cause.

The suits which might be removed in one or other of these modes, according to the condition of the particular cases at the time of the proceeding for removal, were fully described in the two acts already referred to. If the suits now under consideration come within any description of these acts, they are certainly described by section 1 of the act of May 11, 1866. That description includes suits for any act done during the rebellion, by any officer or person, under any order issued by any military officer of the United States, holding the command of any district or place, within which

Woodson v. Fleet.

such act was done by the person or officer for whom the order was intended, or by any other person aiding or assisting him therein. If this description does not include the act for which the suit in controversy was brought, it was not, as we think, within the meaning of either act of Congress. What, then, were the facts in relation to these suits? Two of the defendants were members of the town council of Harrisonburg. The other was the sergeant of the corporation, appointed by the council. The members of the council were elected during the war, while Harrisonburg was within the Confederate lines, and under the control of the insurgent government of Virginia.

The sergeant of the corporation was elected after all organized resistance to the national authority had ceased in Virginia, and after the State government, which had been organized at Wheeling, and recognized by the United States as the rightful government of Virginia, had been established in undisputed exercise of its authority at Richmond.

This suit was brought by Woodson against certain members of the town council of Harrisonburg, and against the town sergeant for malicious prosecution. The facts appear to be that he was arrested; that his case was examined with reference to further proceedings; and that he was discharged by the justice of the peace who conducted the examination.

The first question is: Whether that arrest, under the town council by the town sergeant, was an act done in pursuance of any order of the officer in command of the district? We have been referred to the General Order No. 10, issued from the post headquarters on June 16, 1865, by the military officer then commanding the district in which Harrisonburg was situated. It is to be borne in mind that the members of the common council of Harrisonburg had been elected to that office while the insurgent government of Virginia was in en

Woodson v. Fleet.

tire control of that portion of the State. When that government was dispersed by the superior force of the United States, the civil authorities did not necessarily cease at once to exist. They continued in being, de facto, charged with the duty of maintaining order until superseded by the regular government. Thus the common council of Harrisonburg remained charged with the government of the town, notwithstanding the temporary occupation of the place by United States forces. Doubtless such government might be superseded. The government of the United States was not bound to recognize any authority which originated under the rebel government. But it was not superseded. On the contrary, an order was issued, addressed to the citizens of Harrisonburg, Virginia, June 16, 1865, by which the citizens were notified "that the mayor and council of the corporation last in office, upon the resumption of their duties, will be sustained in all their acts consistent with existing laws and proclamations of the government."

Upon the promulgation of this order, the council, which had suspended its meetings, resumed its functions. It appointed a town sergeant, who was duly qualified. Shortly afterwards a riot broke out in the town, and the defendants, especially the mayor and the town sergeant, were very active in quelling the disturbance. We have no means of judging how great or how dangerous the disturbance was. It had no connection with the military occupation, nor any relation to the authority of the United States. It was an ordinary riot, and the mayor and town sergeant busied themselves in suppressing it. In doing so they arrested, rightfully or unrightfully, Woodson, the plaintiff in this suit.

Now, was that act done in pursuance of the order of the post commander? There was nothing in the order relating to any such matter. It was not addressed

Woodson v. Fleet.

to the council. It did not require them to arrest anybody. It did not command them to suppress a riot. It simply declared that the council would be sustained in its legitimate action as the town government. It would be going too far, we think, to regard this arrest as an act done in pursuance of an order of any officer of the United States. On the contrary, it seems to us to have been an act intended, at least, as an ordinary exercise of authority by the town council and town sergeant under the laws of Virginia.

The courts of the United States have nothing to do with such matters. They are not constituted guardians of the public peace under State laws. On the contrary, these matters are left absolutely to the State courts. The State courts watch over personal rights and private security so far as these depend on State laws. Individuals who exercise local authority are responsible to them, and both are responsible to the people of Virginia.

We think, therefore, that this is not a case within the description of the act of Congress. We are clearly without jurisdiction of it, and must remand it to the circuit court from whence it came.

Order accordingly.

The Dubuque.

THE DUBUQUE.

District Court, Eastern District of Michigan; June T., 1870.

REGISTRY OF VESSELS.-STALE DEMANDS.

A master has no lien upon the vessel for his wages.

Under the laws of the United States governing the registry of vessels, the person in whose name, as master, a vessel is registered, must be deemed her master for every legal intendment and purpose. Where there is a master de jure by virtue of the registry, there cannot be, in contemplation of law, another master de facto. Another person employed by the owners to navigate and even to discipline the ship, does not become master in either sense. The relation of master is fixed by the registry.

An alien cannot, under the laws of the United States governing the registry of vessels, be deemed master of a vessel, even for the purpose of defeating his claim to a lien for wages.

An indorser upon a note not yet matured, gave a mortgage upon a vessel to secure his contingent liability. Afterwards, the liability became fixed. The mortgage, however, entitled him to an extension of time for payment. Held, that the mortgagee was to be deemed a mortgagee for a valuable consideration, and entitled, as such, to intervene for the protection of his interest,* in a libel filed

* In the case of The Old Concord, decided by Judge LONGYEAR, in the district court for the Eastern District of Michigan, April, 1870, the general question of the right, under American admiralty practice, of a mere mortgagee to intervene and contest a libel for the protection of his interest, was considered. In that case, the propeller Old Concord, which had been arrested upon a libel in rem, was duly bonded by the claimant; but the libelants obtained an order remanding her to the custody of the marshal, on the ground that the sureties in the bond had become insolvent. Ward, who held a mortgage upon the vessel, given by the claimant and owner before the libel was filed, moved to vacate this order, on the ground that the court had no juris