A. & E. Wheelwright against J. & G. Depeyster, 1 Johns. 471

Kent, C. J. delivered the opinion of the court. This cause was very ably argued by the counsel, and the several points submitted, have received, as they merited, the attentive consideration of the court. It was contended, that a bona fide purchase by the defendants at St. Jago, for a valuable consideration, and without notice, was equivalent to a purchase in market-overt under the English law, and bound the property against the party who had right.

As no local law is alleged, or proved, this question must be governed by the general principles of thé law of sales, which we are to presume, until the contrary be shown, are received and adopted in all commercial countries, at St. Jago, as well as at New-Tork.

It was the maxim of the civil law that nemo plus juris in album transfer re potest quam ipse habet ; and this plain dietate of common sense is considered by Pothier and ' Erskine as a fundamental doctrine of the contract of sale in France and Scotland; and there is good reason to conclude, that it prevails in most of the countries in Europe, which have felt the influence, or obeyed the precepts of the civil law.

Lord Kaimes, in his-Historical Law Tracts, tit. “ History of Property,” vindicates this principle in the transfer of chattels, and observes, that when notions of property were slight, a bona fide purchase of stolen goods, gave a good title against the original owner ; but that in the progress of society, property acquired such stability and energy, as to affect the subject wherever found, and to exclude even an honest purchaser, when the title of his vendor was discovered to be defective.

It was also a principle in the English common law, that a sale out of market-overt did not change the property against the rightful owner, and the custom of the city of London, which forms an exception to the general rule, has always been regarded and restricted by the courts, with unusual jealousy and vigilance. (Comyn's Dig. tit. market E.) The effect of such a purchase made here, is not strictly before us, but I have no difficulty in saying, that I know of no usage or regulation within this state, no Saxon institution of markets-overt, which controuls or interferes with the application of the common law.

The purchase by the defendants did not, therefore, of itself, and without reference to the title of the vend- or, give them an indefensable right to the goods in question. The original title of the plaintiffs to the coffee being made out upon the trial, and not contested here, we are next to inquire, whether the power and proceedings of the agent of the French government, established at St. Jago, were competent to authorise a sale of the coffee. This agency would appear to have been a prize tribunal with limited and provisional powers.

There- was a process-verbal received, and examinations taken by its authority, and a survey, sale and deposit of th.e proceeds ordered, and the agency is stated to have been established for such purposes. It also appears, that at the time of bringing of the vessel into St. jago as a prize, and at the time of the sale, Spain was a neutral power, and that there had not been any judicial condem ration of the cargo 5 but only an order of this agency for a provisional sale.

I need not question a provisional sale in cases of necessity, under the orders of a competent court ; but I deny the legality of the power exercised at St. Jago. The object of such tribunals in neutral ports, is probably to facilitate the sale, and increase the profits of prizes ; but the object is not to be attained by such means. Amis taübus istis non jura subscrviunt. Neutral ports are not intended to be auxiliary to the operations of the parties at war, and the law of nations has very wisely ordained, that a prize-court of a belligerent' captor cannot exercise jurisdiction in a neutral country.

All such assumed authorities are unlawful and their acts void. This was so considered by the English court of admiralty in the case of the Flad Owen, (1 Rob. adm. 114.) and by the court of- K. B. in the case of Havelock v. Rockwood. (3 Term, 268.) Lampredi lays down the same rule, by saying that the judgment of condemnation ought to be rendered out of the territory of the neutral power.

The proper and regular court to condemn, says the highly respected and authoritative Answer to the Prussian Memorial, is the court of that state to which the cap-tot1 belongs ; and that questions of prize are, and can be, cognizable only in such courts, and, consequently, that the erecting foreign courts, or jurisdictions elsewhere, to take cognizance thereof, is contrary to the known practice of all nations.

The Austrian ordinance of neutrality of the 7th of August, 1803, Art. 17. refers to and admits as valid, condemnations only by the judicial authorities of the countries of the captors; and the supreme court of the United States, in the case of Glass v.

The sloop Betsey, (3 Dallas, 6.) declared, that no foreign power could of right institute any prize-court, or judicature of any kind, within the United States, unless warranted by treaty* From these cases, from the reason and fitness of the thing', and" from the manifest inconvenience and abuse which would result to neutral rights, as well as to" those of the powers at war, from the toleration of a contrary practice, 1 am satisfied, that the rule which I have stated is correct "and just, and supported by 'he soundest authority. The proceedings of the French agency at St.

Jago are, then, to be put out of view, as being coram non judice,. arid we are to consider the sale as made without any judicial sanction. Such a naked sale by a captor even of property professedly belonging to an enemy, is void in law, and incapable of divesting the title of the original proprietor. It is requisite that a sentence of condemnation be given by a court of the sovereign of the captor, before a title to the prize can be transferred. This excellent rule has been long known and established in the English admiralty, as Appears by the case of Terremolin v.

Sandys; (Carth. 423. 12 Mod. 143.) and it seems now to be equally recognized on the continent as part, of the law and practice of nations. (The case of the Flad Owen, 1 Rob. 114. and of the Henrick and Maria, 4 Rob. 43. Heinec. de nav. ob.. vet. mer. veh. comm. sec. 16. Azuni's maritime law, vol. 2 .p. 242.) Our own government, also, adopted the rule during the revolutionary war, and bound itself to observe it.

With respect to the capture of neutral vessels under the pretence of a violation of neutral duty, or of contravening the decrees of a foreign government, as was the instance in the case before us, .the necessity of a previous trial and judgment is still more urgent and palpable, and that necessity is universally admitted. We are next led to examine the effect of the sentence of condemnation at St. Domingo, subsequent to the sale at St. Jago.

This sentence was intendedlo act retrospectively, and to cure all defects in the proceedings before the French agency, but it. does not appear, and from the case we cannot, intend that the proceeds of the sale under the order at St. Jago were deposited in any other place than St. Jago, and the admiralty at Si. Domingo proceeded to exercise jurisdiction over the cargo and to adjudge it lawful prize, when the subject matter of their sentence was within the territory of a neutral power. An important and delicate question then arises, whether We are bound, in such cases, by the decision of a prize-court.

Such a court acts in rem only, and it cannot exercise a competent or efficient authority unless it have possession of the subject. Possession must be essential to its jurisdiction. It is the duty of a prize-court to give a prompt and fair hearing to all parties, and to restore instantly, if upon a

summary examination there does not appear sufficient ground to proceed. But how can this hearing be had, and this restoration made and inforced, when the subject matter in controversy, and perhaps the captors- and captured, are in a foreign country ? The admission of a practice so incompatible with the very constitution of a prize-court would lead to the greatest confusion.

Suppose a foreign prize-court should sustain a libel against a vessel lying within one of our own harbours, and should proceed to try, condemn and sell the same, would any person hesitate to say that such a jurisdiction was inadmissible ? that such a proceeding was coram nonjudice f To sustain jurisdiction in such a case would be the height of injustice and absurdity. The old rule, mention- - ed by Bynkershoeck, of allowing belligerents to carry their prizes into neutral ports, and to sell them there, was, founded on the doctrine that bringing the prize infra prdesidia did of itself work a transfer of title.

But the alteration in the sense an‘d practice of nations, by requiring a judicial condemnation before a change of title can take place, has done away the former indulgence, as incompatible with the new improvement; an improvement which has become an essential and most salutary controul over the exercise of the right of maritime capture.

Valin, who published his commentaries in 1760, considered it then a? ha™S become the law of nations, that prizes could not be carried into a neutral port, unless in cases of necessity, wjtjj0Ut a violation of neutrality, a d this prohibition was in one of the established ordinances of the marine. (Ord. de la Marine, des Prises, art. 14. and Valin ibid.) Amongthe regulations of congress upon this .ubject, in the year 1781, they acknowledged their obedience to the law of nations according to the general usages of Europe ; and they undoubtedly declared their understanding of those usages, when, in the same year, they ordered all prizes to be kept safe without sale, until they had been passed upon by a competent court, and that all prizes were to be brought for a judicial determination before a prize-court within the United States, or within the dominion of an ally of America. (Journals of Congress, vol. 7. 68, 189.) The case cited from March, is interesting, inasmuch as it contains so early a recognition in England, of .the modern rule, that a prize must be brought infra priesidia of the power by whose subject it was taken, or the property would not be altered, and the sale would be void.

Sir William Scott, in the case of the Henrick & Maria, (4 Rob. 43.) admitted, that upon principle, and according to the better opinion and practice, the prize ought to be brought within the ports of the sovereign of the captor, or within those of an ally of such sovereign, and that possession founded the jurisdiction ; but he observed, that the English admiralty had gone too far in sanctioning condemnations in Englandof prizes abroad in a neutral port, to permit him to recall the vicious practice pf the court to the acknowledged principle.

We are, fortunately, under •no such embarrassment in the present case ; and though precedents have controuled Sir William Scott, ég.o ta-men Scevolce assentior; and we are at liberty to consider .the condemnation at St. Domingo as void, for want of jurisdiction in the court ove¡ the subject. ' It has been strongly urged, that this court is concluded by the,sentence, and has no- authority to inquire. into its extent and force, because the question of prize and all questions incident thereto, belong to the exclusive cognizance of the admiralty courts.

It is a sufficient answer to all this, to observe, that we are not inquiring into the question of prize. The plaintiffs prove a property in the coffee, and the defendants justify under a capture, condemnation and sale abroad but before the defence can be received, it must appear that the condemnation was. by a court, having competent jurisdiction in the case, and so far we have, of necessity, an incidental jurisdiction. It wuu d be a monstrous doctrine, to hold that we were concluded by every assumed authority.

We are not to examine into the validity of the capture, but we must look so far as to see, whether the condemnation was by a tribunal competent to pronounce it in the given case, and if that is once ascertained, I agree that we must admit the defence to be conclusive. In the case of Oddy v. Boville, (2 East, 437.) a similar question arose, as to the legality of a French prize-court sitting in Spain, and no objection, was raised as to the competency of the court of K. B. to sustain the inquiry; and in the case of Havelock v.

Rock~ iwood, the same court did not hesitate to declare, that the French court of admiralty at Bergen was illegal. It is the practice of the courts of law in cases of insurance, to reject the decisions of foreign prize-courts, if it appear, that they proceeded upon local ordinances, or on grounds contrary to the law of nations ; (Mayne v. Walter, & Salouci v. Johnson, cited in Parke, and admitted as valid in Geyer v.

Aquilar, 7 Term, 696.) I cannot entertain a doubt, but that we have authority to inquire, and are bound to say, whether the foreign court was, by the law of nations, competent to pass the sentence in question, and haying determined that it was not, that such sentence cannot avail in the present case. The only remaining point in the case is, whether damages ought to have been assessed for the moiety of the coffee which belonged, to the plaintiffs conjointly with the master. This question admits of no difficulty.

It ap» 3 „ 1 pears to be settled m the books, that in actions of trover and trespass, the plaintiff may sue separately for his aliquot share or proportion of interest in a chattel, and that the defendant may give the joint interest -of others in evidence, in mitigation of damages, but that he cannot avail himself of the omission of the plaintiff, to unite the other tenants in common with him in the suit, otherwise than by pleading it in abatement.

He cannot take advantage upon it at the trial. (Skinner, 640. 6 Term, 766. 7 Term, 280. 5 East, 420. 1 Bos. & Puller, 70 to 75.) The hardship of this case upon a bona fide purchaser, is calculated, upon the first impression, to strike the imagination. It was contended by the counsel, that such purchasers ought to have been favoured ; but, as an English judge has somewhere observed, arguments upon the hard- • ship of a case, are only quicksands in the law, which, if admitted, would soon choak and destroy all established principles.

A steady adherence to rule in these cases, by requiring the purchaser of captured property, to look fit his peril to the tide, and to derive it under a competent sentence, will tend to check the intemperate avidity and irregular proceedings of belligerent captors. The opinion of the court, therefore, is, that the defendants take nothing by their motion. Judgment for the plaintiffs. Institute of the law of Scotland, vol. 2. 481. ‡ De Commercio Neutrali, &c. sec. 14. See also Azuni's Maritime Law of Europe, vol. 2. p. 254. Cicero Epist. ad fam. 7. 22.