RIDGWAY v. HAYS et al., 20 F. Cas. 766

CRANCH, Chief Judge.

The object of this bill is to enforce, specifically, a lien upon the defendant Hay’s proportion of the indemnity awarded by the commissioners for the French spoliation of the cargo of the ship Bordeaux Packet, and for that purpose, without stating the amount claimed by the plaintiff, as consignee, for commissions and charges on that cargo, it prays that the whole indemnity for the entire cargo may be paid to the plaintiff, so that he may, out of the same, pay himself, not only those commissions and charges, but the balance of his general account against the defendant Hays, (without stating the amount of that balance,) and distribute the residue to those who may he entitled thereto.

This' prayer is founded upon the legal right which the plaintiff would have had to the possgssion of the cargo, and of the proceeds of sale, if the cargo had not heen seized by the French government. The plaintiff is not contented that this court should give him equity, but he aslrs for strict law.

He does not ask the court to enjoin only the amount of his claims upon the cargo, or its representative — the indemnity awarded— but he now claims, in this court, that he, as consignee, was and is entitled to receive the whole amount of the said indemnity, subject to account to the persons interested therein; that the rights of the shippers “are subject and subordinate to the paramount right and just claim” of the plaintiff “to the full, absolute, and exclusive possession of the same, subject to account with the” defendants, “and he submits to” the court, “to decree to him such absolute, entire, and exclusive possession and control over the same, as legal owner thereof”; and “he insists that he is entitled to have and retain out of the said property specifically, and out of the money so awarded as indemnity for the same, full payment of said balance of account, with interest up to the time of payment; and full remuneration and repayment to him of ail moneys paid and expended by him, and his said late partner, in the reclamation, with interest, and his commissions, calculated upon the sales at Antwerp under the order of the French authorities.” And as the plaintiff can have relief only in this court “to regain possession of, and the control over, said property, of which he has been so wrongfully dispossessed, so as to have the benefit of the lien which he had, and in equity is still entitled to have in and over the same, and to reimburse himself for the advances, expenses, &c., so as aforesaid made and incurred, he prays that the plaintiff may, by the decree of this court, be placed in the full and exclusive possession of the said indemnity, so awarded, subject only to account as aforesaid; and that the proceeds of the said property may be decreed to stand in the place of the property, and to be subject to all liens, claims, and rights, which did exist, or ought to have existed, in favor of the plaintiff against and upon the property, &c., and that the plaintiff may be decreed to be entitled to full mercantile commission, &c., and to full reimbursement of the expenses, payments, and advances so made and incurred as aforesaid, (of all which, if deemed necessary, he prays that an account may be taken under the direction of this court,) and that the defendants may be enjoined, &c„ and such further and other relief, &e.

The specific relief prayed is, 1st. A decree for the possession of the whole amount of indemnity awarded; and. 2dly. A decree that the plaintiff may retain, out of that indemnity, the amount of the unascertained balance of the plaintiff’s general account against the shippers; moneys paid and advanced in the reclamation of the property; and his commissions. No decree is asked against the defendants personally for the amount, if any, due by them to the plaintiff. Under the prayer for general relief, the plaintiff can have no relief which is not warranted by the allegations of the bill.

There is no direct and positive averment in the bill, that any thing is due by the defendants, or any of them, to the plaintiff. It avers that services were rendered, and moneys expended, by the plaintiff, about the cargo, for the benefit of the shippers, but it is not averred that he has not been paid. The amount, or value of those services and expenses, is nowhere stated; nor is the amount of the commissions. It may be $100, or $100,000. If the plaintiff is not entitled to the exclusive possession of the whole fund, the whole ought not to be enjoined.

It the whole should not be enjoined, we have no rule by which to say how much, if any, should be. When a party is obliged to ask the aid of a court of equity to enforce his legal rights, the court will compel him to do equity; and will only grant him relief to the extent of his equitable rights. The plaintiff’s equity, in-the present case, extends only to his claims for services and expenses.

It is not necessary that he should have possession of more than that portion of the fund; and before an injunction can be supported to that extent, the' amount and value of those services and expenses must be ascertained, or at least stated upon oath by the plaintiff. It is not necessary to the enjoyment, by the plaintiff, of all or any of his equitable rights, that he should have possession of the whole amount awarded; and as the plaintiff has not, in his bill, stated the amount of his equitable claims on the fund, wé think the injunction ought to be dissolved.

It is true, that an account is prayed by the plaintiff if it should be deemed necessary; but the fund ought not to be enjoined in the mean time, unless some certain amount be stated and verified by affidavit; and then, the injunction, if granted, should only go to that extent. The court cannot say that an account is necessary unless some amount be claimed by the plaintiff and denied by the defendants. If the plaintiff will specify his claims, and the amount, the defendants may, perhaps, admit them; and then an account, which is an expensive proceeding, will be unnecessary.

It has been contended that the decision of the board of commissioners, rejecting the claim of Mr. Ridgway, is conclusive against him. To this there are two objections: 1. That the commissioners had no jurisdiction to decide ultimately between two or more conflicting American claimants.

The act of congress of .Tuly 13, 1832 (4 Stat. 574), authorizing the appointment of the commissioners, declares their duty to be “to receive and examine all claims which may be presented to them under the convention, and which are provided for by the said convention, according to the provisions of the same, and the principles of justice, equity, and the law of nations.” And to “report to the secretary of state a list of the several awards made by them.” It appears, by the first

article of the convention, that the claims which the commissioners were to examine and report upon, were “the reclamations preferred against” the French government “by citizens of the United States, for unlawful seizures, captures, sequestrations, confiscations, or destructions of their vessels, cargoes, or other property.” The claims, of which the board had cognizance, were claims against the French government; not against the owners of the property claimed, nor against the property itself.

In each case, the great question for them to decide was, whether the property of American citizens had been unlawfully seized, &c., by tne French government. So far as it was necessary to decide the national character of the property seized, they had authority to ascertain the legal owner; but if all the conflicting claimants were citizens of the United States, there was no necessity of their deciding the question of ownership between them.

They might select the name of the person who seemed to them to be the legal owner, or they might name all the conflicting claimants, and leave them to litigate their rights in the municipal courts of the country; or they might award in favor of “the legal owners,” without naming them, as they did in several cases, as will appear by reference to the list of awards returned by them to the secretary of state. See printed documents of the house of representatives, No. 117 of the 1st session of the 24th congress. In accordance with this opinion is that of the commissioners under the Florida treaty, in Sheppard v.

Taylor, 5 Pet [30 U. S.] 685; and of the supreme court of the United States, in Comegyss v. Vasse, 1 Pet. [26 U. S.] 212. In that case, the commissioners under the Florida treaty had awarded a sum of money to Comegyss and others, assignees of Vasse under the bankrupt law. Vasse brought his suit at law against his assignees to recover that amount, upon the ground that his right of indemnity from Spain did not pass by the assignment. Mr.

Justice Story, in delivering the opinion of the court, says, (on page 212): “It has been justly remarked in the opinion of the learned judge who decided this cause in the circuit court, that it does not appear, from the statement of facts, who were the persons who presented or litigated the claim before the board of commissioners; nor whether Vasse himself was before the board; nor who were the parties to whom, or for whose benefit the award was made. We do not think that the fact is material upon the view which we take of the authority and duties of the commissioners.

The object of the treaty was to invest the commissioners with full power to receive, examine, and decide upon the amount and validity of the asserted claims upon Spain for damages and injuries. Their decision, within the scope of this authority, is conclusive and final. If they pronounce the claim valid or invalid; if they ascertain the amount,’ their award in the premises is not reexaminable. The parties must abide by it as the decree of a competent tribunal of exclusive jurisdiction.

A rejected claim cannot be brought again under review, in any judicial tribunal; an amount once ⅝-ed, is a final ascertainment of the damages or injury. This is the obvious purport of the language of the treaty. But it does not necessarily or naturally follow, that this authority, so delegated, includes the authority to adjust all conflicting rights, of different citizens, to the fund so awarded.

The commissioners are to look to the original claim for damages and injuries against Spain itself; and it is wholly immaterial, for this purpose, upon whom it may, in the intermediate time, have devolved; or who was the original legal, as contradistinguished from the equitable owner, provided he was an American citizen. If the claim was to be allowed as against Spain, the present ownership of it, whether in assignees or personal representatives, or bona fide purchasers, was not necessary to be ascertained, in order to exercise their functions in the fullest manner.

Nor could they be presumed to possess the means of exercising such a broad jurisdiction, with due justice and effect. They had no authority to compel parties, asserting conflicting interests, to appear and litigate before them, nor to summon witnesses to establish or repel such interests; and under such circumstances it cannot be presumed, that it was the intention of either government to clothe them with an authority so

summary and conclusive, with means so little adapted to the attainment of the ends of substantial justice. The validity and amount of the claim being once ascertained by their award, the fund might well be permitted to pass into the hands of any claimant; and his own rights, as well as those of all others who asserted a title to the fund, be left to the ordinary course of judicial proceedings in the established courts, where redress could be administered according to the nature and extent of the rights or equities of all the parties.

We are, therefore, of opinion, that the award of the commissioners, in whatever form made, presents no bar to the action, if the plaintiff is entitled to the money awarded by the commissioners.” The powers of those commissioners were “to receive, examine, and decide upon, the amount and validity of the claims against Spain.” The powers of the commissioners in the present case, are “to receive and examine,” and to “report to the secretary of state a list of the several awards made by them.” • The reasoning of the judge in that case applies, therefore, with greater force to this. 2. The claim of Mr.

Ridgway, as consignee and owner, was in the right of the firm of J. Ridgway, Mertens & Co., and it is admitted in argument that Mertens was not a citizen of the United States. His share of the loss, therefore, was not a claim of which the commissioners had cognizance. But although they rejected his claim as legal owner of the whole •cargo by virtue of the consignment, they did not reject his claim for freight paid, and moneys advanced, as against the sum awarded; but they did not consider Mm as having a direct claim against the French government therefor.

Their decision, so far as it was a claim against that government, is conclusive; but not as to his claim against the sum awarded. His claim against the French government for commissions, was also rejected; it being one of a rejected class of claims; for if indemnity be made to the shippers, the commissions, if due at all, axe a charge upon the indemnity, in the same manner as they would have been upon the proceeds of sale, if there had been no seizure. But this rejection is no bar to the plaintiff's claim on the fund, for commissions. if he is entitled to them.

He was, and •perhaps is, entitled to a just and equitable remuneration for his services and expenses; the •commissions may or may not be the proper measure of that remuneration. Whether the ■sum allowed him by the commissioners for expenses of reclamation, and the amount charged in his account and settled by Mr. Hays in May, 1811, are a full compensation, does not appear, and the court has no means of deciding that question. It is said that the ■consignees had no right to make the reclamation and incur the expenses, &c., but that the shippers ought to have applied, at once, to the United States..

But if they had, the answer would probably have been: “Go and complain to France; we cannot suppose that she will not do you justice. After using in vain all reasonable endeavors to obtain indemnity from her, come to us, and we will make a national affair of it.” The consignees, as agents of the shippers did so, and they are, or were, justly entitled to reasonable compensation for their trouble and expenses. An objection was taken to the number of the defendants.

But the plaintiff’s claim is for expenses, &e., applicable to the whole cargo, and it was necessary to make defendants of all who were interested in the apportionment of those expenses. It has also been objected, that all the defendants have not answered it. But they are absent; and no process has been served upon them, nor has any notice been given by publication, as is usual in such cases.

The principal defendant, the original owner and shipper of the cargo, has answered, and the other defendants claim under him, and, according to the nature of the ease, he must be supposed to have the best knowledge of its circumstances; and he avers that the plaintiff has been twice paid for his trouble and expenses; and denies that he is entitled to any thing out of the award. If the plaintiff had stated his case fully, I do not know that this answer would have been sufficient to dissolve the injunction; but, upon the bill itself, I think the injunction must be dissolved.

If the court should be of that opinion, it will be unnecessary to decice as to the authority of the court to enjoin the payment of money out of the treasury of the United States.

It may be observed, however, that in the present case, the fund is placed in the treasury of the United States as in a place of deposit only, and the United States are merely trustees; and if the award of the commissioners is not conclusive between conflicting American claimants of the fund, and if the ordinary judicial tribunals of the country have jurisdiction to decide such conflicting claims, I cannot see why the United States, in cases in which they are merely stakeholders, should not submit to those decisions, and aid those tribunals in the due administration of justice. See Ellis v.

Earl Gray (in equity) 6 Sim. 214, where the lords commissioners of the. treasury were enjoined from paying an annuity. The plaintiff having had leave to amend his bill, the motion to dissolve the injunction came on again to be argued upon the amended bill and answer, and was further postponed to the 2d of February, when the court (THRUSTON, J., absent) dissolved the injunction, except as to the amount claimed by Mr. Ridgway.