OLMSTEAD v. The ACTIVE, 18 F. Cas. 680

PETERS, District Judge. This is the long-depending case of the sloop Active and cargo. It comes before me by libel filed against the executors of the late Mr. Rittenhouse, who received from George Ross. Esq., then judge of the state court of admiralty, the sums mentioned in the libel, which were invested in the certificates of stock as stated therein. Mr. Rittenhouse, on receiving these certificates, which were proceeds of the sales of the said sloop and cargo, gave a bond of indemnity to Mr. Ross, which is now offered, when payment of these proceeds is made, to be delivered up.

The suit is instituted for the purpose of carrying into effect a decree of the court of appeals established under the old confederation, a copy whereof appears among the exhibits. In the answer it is alleged that the moneys were received for the state of Pennsylvania. In the replication this is denied. In a memorandum made by Mr. Rittenhouse, at the foot of the account exhibited, it appears that he intended to pay over these proceeds to the state when indemnified. No such payment ever has been made, and .the certificates and moneys are yet in the'Hfmds of the respondents. It air-pears to me that Mr.

Rittenhouse considered himself, as I conceive he was, a stake-holder, liable to pay over the deposit to those lawfully entitled thereto. His executors conceive themselves' in the same predicament, and have declined paying over the certificates and interest No counsel have appeared, and requested to be heard on the part of the respondents, and I am left to judge from the libel, answer, replication, and exhibits, which contain the state of the facts. If I should be thought mistaken in the opinion I form on the subject, there is time and opportunity to appeal to a superior tribunal.

I throw out of the case all circumstances not immediately within my present view of the duty I have to perform. 1 have nothing to do with the original question. That has been decided by the court of appeals; nor does it-appear-to me essential for me to determine with what intentions Mr. Rittenhouse received the certificates. The fact of the certificates and interest being now in the hands of the respondents is granted by them in their answer.

It.has been determined by the supreme court of the United States that this court has power to effectuate the decrees of the late court of appeals in prize causes, and this court has, on several occasions, practiced agreeably to that decision. There is no doubt in my mind (.the authorities in the books being clear on this point) that the process and jurisdiction of this court will reach and extend over the proceeds of all ships, goods and articles taken as lawful prize, found within the district, and legally proceeded against therein.

These proceeds are under the same legal disposition, and subject to the same responsibility, under whatever shape they may appear, as the original thing from which they were produced. It is conceded that the certificates and moneys in question are proceeds of the sloop and cargo in the libel mentioned. These were decreed to the libellants by the judgment of the late court of appeals.

I am, therefore, of opinion, and accordingly decree, and finally adjudge and determine, that the certificates be transferred and delivered, and the interest moneys paid over by the respondents to the libellants, in execution of the judgment and decree of the court of appeals, as stated in the proceedings in this cause, with costs. I make it. however, a condition that the bond of indemnity be cancelled or delivered to the respondents, on their compliance 'with this decree. [NOTE. The respondents refused to obey this decree, and an application was made to the court for an attachment. This was refused.

Whereupon the complainants moved in the supreme court for a mandamus against Judge Peters. Upon the hearing on the return a peremptory mandamus was awarded commanding him to issue the attachment. U. S. v. Peters, 5 Crunch (9 U. S.) 115.]