text:
    Samuel Dinsman, Plaintiff in Error, v. Charles Wilkes.
    Under the Act of Congress, passed on the 2d of March, 1837, (5 Stat. at Barge 153,) the commander of a squadron had power to detain a marine after the term of his enlistment expired, if, in the opinion of the commander, public interest required it. See 7 Howard, 89.
    The decision of this question, by the commander; was final and conclusive; and if the marine did not conform to it, he was liable to punishment.
    So, too, the commander was the judge of the degree of punishment necessary to suppress a spirit of disobedience and insubordination; and he is not liable to an action for a mere error in judgment, even if the jury suppose that milder measures would have accomplished his object.
    But at the same time he is bound never to inflict any severer punishment thanjhe conscientiously believes to be necessary to maintain discipline, and due subordination in his ships.
    The question being one of motives, the jury are to judge whether he was actuated alone by an upright intention to maintain the discipline of his command, or whether punishment was in any manner 'or degree increased or aggravated by malice or vindictive feeling.
    In deciding this question, the jury are to take into consideration all the circumstances of the case.
    A letter from one of the officers of the squadron to the commander, upon the temper and disposition of the marines in one of the ships, was proper evidence for. the jnry.
    But the proceedings of- a court-martial, for the trial of men for offences committed, long before, was not evidence, because it did not show the spirit existing at that time.
    Nor was evidence admissible, of the flogging of two other persons merely by the authority of the commander without a court-martial.
    Nor was evidence admissible, that the commander refused to give to the marine, a certificate, under the act of Congress before referred to; because the commander claimed' to hold him by voluntary enlistment.
    In order to show the motive by which the commander was actuated in confining the marine in a fort, on shore, it was admissible for the commander to offer evidence that merchant seamen from American ships were confined, there, and also for the marine to offer evidence to rebut it.
    This case was brought up by writ of error, from the Circuit Court of the United States, for the District of Columbia, holden in and for the county of Washington.
    It was the same case which is reported in 7 Howard, 89. It was then Wilkes v. Dinsman, and this court, having reversed the judgment of the Circuit Court, sent it down to be tried' again. Upon such new trial, the verdict'was for Wilkes, and Dinsman brought-it up again upon the exceptions to the rulings of the court. -
    The statement of the evidence offered by the plaintiff in- the Circuit Court was the same, in substance, with tha,t set forth in. 7 Howard, and need not be now repeated. The exceptions taken at the trial were the following:
    “ On the further trial of this cause, and after the foregoing evidence was given on the part of the plaintiff, pnd which is made part hereof, the defendant, for the purpose of showing probable cause and the absence of malice, on his part offered to read in ■ evidence the following paper marked A; (letter of Lieüt. Emr mons,) having first proved that the same was in the handwriting of Mr. Emmons, who was a lieutenant of said ship, and that the other.signatures are genuine; which said paper being in the possession of the defendant, as an official paper, was produced on the trial by. the defendant; to the admissibility of which said letter, the plaintiff, by his counsel, objected; but the court overruled the objection, and admitted the same paper to be read in evidence, to which the plaintiff excepts, and this his exception is signed, sealed, and enrolled, this 30th day of November, 1849.”

      Second Bill of Exceptions.

    “ On the feather trial of this cause, and after the evidence contained in the plaintiff’s aforegoing exception and statement of evidence, and which is made part hereof, the defendant produced to the court two original records of the trial of Riley and Ward, respectively, and proved the same to be the originals; and offered to read to the jury so much of the said records as contains the charges, specifications, and finding of the court-martial as relates to mutinous conduct as follows:  In order to show the defendant had probable cause for, and to repel any presumption of malice arising from the fact of the imprisonment by the defendant of the plaintiff, as aforesaid, in the said fort. To all which said evidence the plaintiff, by his counsel, objects; and the court overrules the objection, and admits the same; whereupon the plaintiff prays an exception thereto; and that the court may sign and seal this his bill of exceptions, and cause the same to be enrolled according to the statute: All which is done this 30th November, 1849.”

      Third Bill of Exceptions.

    “ On the further trial of this case, and after the evidence coutained in the aforegoing exceptions, made part hereof, and after the defendant had read to the jury Lieut. Emmons’s letter, and so much of the records of the court-martial as stated in the aforegoing exception, the plaintiff to rebut the same, and for the purpose of showing the state of the discipline of the ship Peacock, at and about the time of committing the trespasses laid in the declaration, offered to ask Lieut. Walker, the first lieutenant of said ship, what was the general conduct and character of Riley, Ward, and Lewis, aforesaid, for subordination and fidelity to duty, at the time of the holding of said court-martial, and prior thereto, and during the time embraced in charges against them as contained in the said letter of Lieut Emmons; but the defendant objected thereto, and the court refused to allow the said question and evidence to be put and admitted; to which refusal the plaintiff excepts, and this his exception is signed,' sealed, and enrolled, this 30th day of November, 1849.”

      Fourth Bill of Exceptions.

    “ On the further trial of this cause, and after the evidence contained in the aforegoing exceptions, and made part hereof, and after the defendant had given evidence of particular instances of insubordination and misconduct among the crew of the- said ship Vincennes, from the time of her arrival at Oahu, to the time of the imprisonment of the plaintiff, in order to prove that the discipline of the same was relaxed and impaired; and after the defendant had closed his evidence in.chief, the plaintiff, to rebut the same, offered to read from the log-book of said ship, at a date after her said arrival, to wit, “ that on the 16th day of October, 1840, at the said island, a certain Leo Weaver and Henry Waltham, two of the crew of said ship, were flogged thereon, the first with sixteen lashes, and the last with eighteen lashes, for desertion, insolence, and neglect of duty; and that the same did not appear by said log-book to have been done by the sentence of a court-martial; but the court refused said offered evidence, and the plaintiff excepts thereto, and this his exception is signed and sealed this 30th November, 1849.”

      Fifth Bill of Exceptions.

    “ Upon the further, trial of this case, after the evidence contained in the aforegoing exceptions made part hereof had been given, and after the plaintiff and defendant had both closed their evidence in chief, and after the defendant had given evidence that he had, subsequent to the sailing of the said squadron, shown marks of favor to the plaintiff, and had promoted him to the rank of corporal, in order to repel any infeíences of malice on his .part towards the plaintiff; but the plaintiff offered evidence tending to prove that the defendant claimed his right to hold the plaintiff in the said squadron under and by virtue of an act of Congress, approved March 2,1837, entitled An act to provide for the enlistment of boys, &e.” And further offered to prove that the defendant had failed, and refused to certify, as required by said act, by reason whereof the plaintiff had been and was denied the benefit of the additional pay, as is by said act provided. And the plaintiff offered this evidence to rebut that of the defendant, and to show a continuing malice on his part towards the plaintiff; but the court refused the said offered evidence, and the plaintiff excepts, and this his exception is signed and sealed this 30th November, 1849.”

      Sixth Bill of Exceptions.

      “ On the further trial of this case, and after the evidence contained in the aforegoing exceptions, made part hereof, and after the evidence in chief on both sides had been closed,'and after the defendant had given evidence to prove that at the time the plaintiff was confined in said fort there were merchant seamen of the United States confined there, for the purpose thereby of inferring a knowledge by the defendant that said fort was a proper place for the imprisonment of the plaintiff:
    “ The plaintiff, by way of rebutting the same, offered evidence tending to prove that it was a general and uniform practice and, custom in the naval service at the time aforesaid, and long before, as well established, to confine on the armed ships of the United States in airy foreign port, any and all merchant seamen of the United States, who might there deserve such confinement by reason of their own ship or master not being able to confine them; which offered evidence the court refused, and the plaintiff excepts thereto, and this his exception sealed this 30th day of November, 1849.”

      Seventh Bill of Exceptions.

    “ And thereupon the defendant, by his counsel, prayed the court to instruct the jury that,—
    “ If, from the whole evidence aforesaid, the jury shall find that the plaintiff, being an enlisted marine, signed the paper as aforesaid, marked A, (the same being the contract to serve during the cruise,) the court instructs the jury he was thereby bound to serve in the exploring expedition till the ships returned to the United States; and
    “ If they further find the defendant was the commander of that expedition, was lying with his squadron in the harbor of Honolulu, the ships were undergoing repairs, and .refitting for the purpose of further prosecuting the objects of said expedition, and the commander and many of the officers on shore pursuing their investigations that the said discipline of said squadron was thereby greatly relaxed,' and the defendant received such information as led him to believe, and he did believe, that the marines on board the said squadron were unwilling to serve out the said cruise, and would refuse to do duty, and require to be sent home at the respective periods they might think their original terms of enlistment expired ; and after four of the marines on board the ship Vincennes, under the immediate command of defendant, had in fact refused to do duty, on the ground that the terms of their original enlistment had expired, the plaintiff in like manner refused on like grounds; then it was in the discretion of the defendant to confine said plaintiff in said squadron, or on said island, as he might deem best, for a few days, and until the squadron was ready to sail; and he is not responsible for confining the plaintiff on the island, (if the jury shall find’ he was confined there by the order of defendant,) notwithstanding they shall be of opinion that he might have been confined in the squadron.
    “And if the jury shall further find that the plaintiff was confined in the fort on the island, that said fort was the only public place of imprisonment on the island, was used by the consuls for the confinement of seamen, and by the authorities of the island for persons criminally charged, and for seamen who had deserted from the ships, and that seamen were shipped from said fort into said squadron; that the defendant refitted his ships, and brought the plaintiff on board, and sailed with all reasonable despatch; then it is not competent for the jury to infer malice or corrupt motive in the defendant in so ordering the plaintiff to be sent to said fort, if he would not go to duty-; although the jury may be of opinion that he might have been kept safely, and with more comfort to said prisoner, on board said squadron; and in the absence of all proof that defendant gave any order as to the mode of his confinement of said plaintiff, or for denying him any comforts, or that he had any knowledge of the manner of said imprisonment, or of his being deprived of comforts, or of the circumstances of hardship stated in the evidence, it is not competent for the jury to infer malice or corrupt motive in the defendant, from the facts (if the jury shall find them so) that plaintiff was confined, and lodged, and fed as stated in the plaintiff’s evidence; and without proof of malice the plaintiff is not entitled to recover in this action. Which instruction the court gave as prayed, and the plaintiff, by his counsel, excepts thereto, and prays the court to sign and seal the same, and cause the same to be enrolled according to the statute, which is done accordingly this 30th .November, 1849.”

      Eighth Bill of Exceptions.

    “ On the further trial of this cause, and after the evidence contained in the foregoing statement of evidence and exceptions made part hereof; and after the whole evidence had been closed, .and after the court had instructed the jury according to the prayer-of the defendant as aforesaid, the plaintiff prayed the court to instruct the jury as follows:
    “ 1st. If the jury believe from the whole evidence that the plaintiff was put and kept in the said fort by order of the defendant, the"n, notwithstanding the defendant had a right to put and keep him there, yet the motive .with which the same was done is á question for the jury; and if the jury believe that such motive was founded either on malice, cruelty, or any species of oppression, then the defendant is liable therefor, and the jury may give such damages as upon the whole evidence they think the plaintiff ought to have.
    “ 2d. If the jury believe from the whole evidence aforesaid that the defendant was captain of the ship Vincennes, and that the said ship was in a state- of sufficient discipline, and the plaintiff could have been securely confined thereon, with safety to said ship, the officers, and crew, at the time he was sent to said fort, and .during the time he was confined therein, then it was the duty of the defendant to know the same, and the jury may presume he did know the same; and it is competent for them to infer therefrom that the defendant acted maliciously toward the plaintiff in confining him in said fort. And if the jury believe he was confined in said fort by order of the defendant, they may give such damages therefor as upon the whole evidence they .think the plaintiff ought to have.
    “ 3d. If the jury believe from the whole evidence that the plaintiff was imprisoned in the said fort by order of the, defendant, and that the defendant acted therein from malice, cruelty, or any species of oppression, he is responsible therefor, and the jury may give such damages therefor as ' upon the whole evidence they think the plaintiff ought to have.
    “ 4th. If the jury believe from the whole evidence that the plaintiff was put and kept in the said fort by order of the defendant, and that the same was done through malice, or any species of oppression, then the defendant is liable therefor, and. the jury may give such damages -as they think the plaintiff ought to have; notwithstanding the jury may find that the defendant considered the said fort to be a more proper and safe place of confinement than the vessels of said squadron.
    “ 5th. If the jury believe, from the whole evidence, that the plaintiff .was imprisoned in the said fort by order of the defendant, and that the same was accompanied by malice on the part of the defendant, then the plaintiff is entitled to recover, and the jury may give such damages therefor as they think the plaintiff ought to have. Notwithstanding the jury may believe that, under all circumstances, the said imprisonment was considered by the defendant to be with more propriety and safety than in the squadron.
    “ 6th. If the jury believe from the eyidence that the plaintiff was put and kept in the said fort by order of the defendant, and are of opinion that there was no justifiable cause for the act; and are further of opinion, from the whole evidence, that the same was wantonly done by the defendant, with a wilful disregard of right or duty, and contrary to his own convictions of duty, as a mere -exercise of power, without any sense of its being right, then it is competent for the jury to infer that the same was maliciously done; and if so done, the defendant is responsible, and the jury may give such damages therefor as, upon the whole evidence, they think the plaintiff ought to have.
    “ 7th. If the jury believe from the evidence that the plaintixT was confined'in the said fort by order of the defendant, when he could, without any difficulty, have been confined on the said ship, and that he knew he could have so confined him; and that the plaintiff was, in said fort, subjected to cruel and barbarous treatment, and the defendant could have prevented the same, and it was his duty to prevent the same, and he did not interfere so to do, then it was competent for the jury to infer malice therefrom in the conduct of the defendant, and he is responsible therefor; and the jury may give such damages as, upon the whole evidence, they may think the plaintiff ought to have.
    “ 8th. If the jury believe from the evidence that the plaintiff was confined in the said fort by order of the defendant, in a small cell, with irons on his hands, arms, and legs, and, while so confined, was. subjected to cruel, unusual, and barbarous treatment, which the defendant could have prevented, and which it was his duty to .prevent, then it is competent for the jury to infer malice on the part of the defendant, and he is responsible therefor; and the plaintiff may recover in this action.
    “ Which said prayers, and every and each of the same, the court refused to grant; to which refusal the plaintiff, by his counsel, excepts, and this, his exception, signed, sealed, and enrolled, this 30th day of November, 1849.”

      Ninth Bill of Exceptions.

    “ On the further trial of this cause the counsel for the plaintiff, in his summing up to the jury, having stated that the evidence, and the only evidence, on which he relied to show the knowledge of the defendant of the severities alleged to have been practised on the plaintiff, by being imprisoned in the said fort, was, that the said ships, the Peacock and Vincennes, were in a good state of discipline, and the plaintiff might have been safely kept in one of them; that it was, by the rules and regulations of the navy, made the duty of the captain to look after the comfort of his men ; that no articles of food or clothing were sent from said ship to said plaintiff while in said prison; that defendant and the sergeant of marines were on shore most of the time while the plaintiff was so imprisoned, and the facts and circumstances of said imprisonment itself, as stated in plaintiff’s evidence; the defendant, by his counsel, prayed the court to instruct the jury that, from the said evidence, if the same is believed by the jury, it is not competent for them to find that defendant had knowledge of the severities said to have been practised on the said plaintiff in said prison, and without such knowledge the plaintiff is not entitled to recover in this action.
    “ Which instruction the court gave, and the plaintiff excepts thereto; and so excepting to the granting of the same, the plaintiff denies that the same sets forth the whole evidence on which he relied, as proving the malice of the defendant, or his knowledge of the treatment of the plaintiff during all his said imprisonment, and at the commencement, continuation, and end thereof; and he excepts to said instruction on said grounds, and all other grounds to which the same may be liable, and this, his exception, is signed, sealed, and enrolled, this 30th November, 1849.”

      Tenth Bill of Exceptions.

    “ On the further trial of this case, and after the plaintiff’s counsel had summed up to the jury, and the court had, after such summing up, granted the defendant’s prayer, marked P, the plaintiff prayed the court further to instruct the jury as follows:
    “ That, from the whole evidence aforesaid, it is a matter of fact for the jury to find whether the said whipping of the plaintiff was immoderate, excessive, and malicious, on the part of the defendant, under all the circumstances.
    “ That, upon the whole evidence aforesaid, if believed, it is competent for the jury to find that the defendant did, unwarrantably and maliciously, imprison the plaintiff in the said prison or fort.
    “ That, upon the whole evidence aforesaid, if believed, it is competent for the jury to find that the defendant wilfully neglected the personal comfort and cleanliness of the plaintiff while imprisoned by his order in the said fort; and if the jury shall find such wilful neglect, then the defendant is liable to this action ; provided the jury shall further find that, while so imprisoned, the condition of the plaintiff was uncomfortable, wretched, and filthy, and his food unwholesome and unpalatable.
    “ Upon the whole evidence aforesaid, if believed, it is competent for the jury to find that the imprisonment of the plaintiff in said fort was unnecessary and unjustifiable by the exigencies of the case; and that, in ordering said imprisonment, the defendant was actuated by malice, and an unlawful desire of punishing the plaintiff cruelly and immoderately.
    “ That from the whole evidence, if believed by the jury, it is competent for them to find that the defendant wilfully neglected to bestow proper attention to the health, comfort, and cleanliness of the plaintiff while imprisoned in said fort;, and such wilful neglect, if found by the jury, amounted in law to express malice on the part of the defendant.
    “ That it is competent for the jury, from the whole evidence aforesaid, if believed by them, to find that the imprisonment of the plaintiff, so stated in the evidence, in said fort, was longer than the exigency of the case required; and if the same shall be found by the jury, then the plaintiff'is entitled to recover, provided the jury shall further find that the prolongation of such imprisonment was the result of malice on the part of the defendant towards the plaintiff.

      “ If the jury find, from the whole evidence, that the plaintiff was placed in the said fort by order of the defendant, then the defendant was bound to know the kind of treatment to which the plaintiff was subjected by said- imprisonment; ánd he cannot be presumed ignorant thereof, especially if the jury find that, during said imprisonment, the defendant neglected to make inquiry into the condition and treatment of the plaintiff.
    “ That, upon the whole evidence aforesaid, if believed by the jury, they shall find that the defendant, in all the acts complained of by the plaintiff’, was actuated alpne by an upright intention to maintain the discipline of his command, and the interests of the service on which he was engaged, then the plaintiff is not entitled to recover; but if the jury shall find that said acts, or any of them, proceeded from, or were aggravated by, cruelty, malice, and oppression towards the plaintiff, then the plaintiff is entitled to recover.
    “ Which instructions, and each and every of them, the court refused to give; to which refusal the plaintiff excepts, and this, his exception, is signed and sealed this 30th November, 1849.”

      Eleventh Bill of Exceptions.

    “ Upon the further trial of this cause, the plaintiff prayed the court to instruct the jury that, upon the whole evidence aforesaid, if believed by the jury, it is competent for them to find a verdict for the plaintiff, and to assess such damages as they shall think, under the circumstances, the plaintiff is entitled to recover.
    “ Which instructions the court refused to grant; to which refusal the plaintiff excepts, and this, his exception, is signed, sealed, and enrolled, this 30th day of November, 1849.”
    Upon these exceptions the case came up to this court.
    It was argued by Mr. Addison and Mr. May for the plaintiff in error, and by Mr. Bradley for the defendant in error.
    The counsel for the plaintiff in error
    made the following points:
    1. That there is evidence in this case of “ malice and oppression ” in the act of the plaintiff’s imprisonment, both by direet and implied proofs: 2 Greenl. Ev. 453; 3 How. 267, 291, 292; 7 Id. 89; 4 Barn. & Cress. 255; 2 Starkie’s Ev. (Metcalf’s ed.) 904, 905; 3 Kent’s Com. 181, 182, 183; 4 Serg. & Rawle, 423; 1 Wend. 140; 2 Starkie’s Rep. 388, 389; Hueneford v. Horn, 2 Carr. & Payne; 3 Bing. N. C. 950.
    2. That even if the act of imprisonment was free of malice, yet there is evidence of “ malice, cruelty, and oppression ” in the mode and circumstances attending the said imprisonment. Wall v. Namara, quoted in 1 Term Rep. 536, 537; The Six Carpenters’ Case, 1 Smith’s Selection of Leading Cases, Amer. ed. and the cases there referred to; Bradley v. Davis, 2 Shepley, 44; Malcolm v. Spoor, 12 Met. 280; Melville v. Brown, 15 Mass. 82; Jarratt v. Gwathmey, 5 Blackf. 239; Lambert v. Hodgson, 1 Bing. 317; Fabrigas v. Mostyn, 1 Cowp. 161; 1 Chitty’s Pl. 539; Duncan v. Thwaite, 5 Dowl. & Ry. 462; King v. Root, 4 Wend. 137; Dexter v. Spear, 4 Mason, 118.
    3. That on the evidence in the case the quo animo of the defendant was a question of fact for the jury. 4 Burrow, 1971; Parks v. Ross, 11 How. 362; Turner v. Walker, 3 Gill & Johns. 386; Scott v. Lloyd, 9 Pet. 418; Greenleaf v. Brith, 9 Pet. 292; Ches. & O. Canal Co. v. Knapp, 9 Pet. 541; Fergusson v. Tucker, 2 H. &. G. 183; Gray v. Crook, 12 G. & J. 236; White v. Nichols et al. 3 How. 266; Mitchell v. Jenkins, 5 Barn. & Adol. 593, 594; Ravenga v. Makintosh, 2 Barn. & Cress. 493; Taylor v. Willans, 2 Barn. & Ad. 845, 848; Venafra v. Johnson, 10 Bing. 301; Panton v. Williams, 2 Adol. & Ellis, 632; 42 Eng. Com. Law Rep.; Turner v. Ambler, 10 Adol. & Ell. 252, 259; Abbott on Ship. 179, note, 5th Am. ed. 236; United States v. Ruggles, 5 Mason, 192; Magee v. Ship Moss, Gilpin’s Rep. 21; Relp v. The Maria, 1 Pet. Adm. Rep. 86, 174 note, 175 note; Gilpin’s Rep. 32.
    4. That the letter of Lieut. Emmons was not admissible in evidence. 1st exception.
    5. That the records of the trials by court-martial of Riley and Ward were not admissible in evidence. 2d exception.
    6. That the evidence of Lieut. Walker, of the character and conduct of Riley and Ward, to rebut the presumption sought to be raised by their conviction by court-martial, was admissible. 3d exception.
    7. That the entries in the log-book of the punishment of Weaver with sixteen and Waltham with eighteen lashes, without the sentence of a court-martial, was admissible to rebut the proof offered on the part of the defendant, that thq discipline of the squadron was relaxed.' 4th exception.
    8. That the evidence that the defendant claimed to hold the plaintiff under the act of Congress of 2d March, 1837, and that he refused to certify that he detained the plaintiff under said law, by reason whereof the plaintiff was deprived of the additional pay, provided for by said act, was evidence proper to be admitted to rebut the inference of absence of malice sought to be raised from marks of favor shown to the plaintiff by the defendant. 5th exception.
    9. That the evidence that it was 'the custom and uniform practice to confine on the armed ships of the United States, in a foreign port, all merchant seamen of the United States, who might there deserve such confinement when they could not be confined on their own ship, was admissible to rebut the inference of a knowledge by the defendant, that the native fort was a proper place for the imprisonment of the plaintiff, sought to be established‘by the proof that merchant seamen were confined in said fort at the time the plaintiff was there imprisoned.

      Mr. Bradley, for the defendant in error.
    The substance of this case will be found in 7 How. 98. The evidence is varied only so far as relates to the evidence of a corrupt motive ir. the defendant in ordering the imprisonment complained of.
    ■ The facts are substantially embraced in the defendant’s prayer granted by the court, forming plaintiff’s 7th exception. This, taken in connection with the 9th and the 11th bills, will present the whole case to the court. They cannot well be abbreviated.
    The first sets out those facts, which being found by the jury, constitute probable cause. It proceeds on the hypothesis that the defendant had reason to believe, and did believe, in the exist-

      If he did so believe, a case arose for the exercise of his discretion. If in the exercise' of that discretion he did no more than issue a conditional order, and the plaintiff would not comply with the condition, he is not responsible for the execution of that order, provided he directed no more than the ordinary and usual course of its execution, and was ignorant in fact of any excess in that execution.
    That malice means wilful neglect, omission or commission. And unless knowledge was brought home to him of the omission of some inferior officer to discharge his duty, by which under the pretended execution of his order the plaintiff suffered, the defendant is not responsible.
    The basis of the whole is a reasonable belief in the existence of a particular state of facts — a discretion to act under that belief, and a resort to ordinary means to execute that act.
    The plaintiff, on the other hand, maintained, that if the case arose for the exercise of his discretion, he was bound to see to the execution of his order in detail, and was responsible for any injury which arose in the course of such execution; that is to say, if there was probable cause, malice alone was sufficient to enable him to recover.
    And again: the plaintiff so framed his prayers as to submit the whole question of probable cause to the jury.
    The defendant will rely on the case in 7 Howard, and on the cases cited by the plaintiff in error, and endeavor to show that there is no error in any one ruling, to which the plaintiff has excepted.

         Note by the reporter. The letter of Lieut. Emmons was not in the record; but its object was to show the temper and disposition of the marines in one of the vessels of the squadron.

       The offences with which Ward and Riley were charged, were committed on the 29th September, 1839:

   Mr. Chief Justice TANEY

delivered the opinion of the court.

This cáse was. before the court on a former occasion, and is fully reported in 7 How. 89. The present defendant in error was then the plaintiff, and the judgment of the Circuit Court was reversed, and a venire de novo awarded, the new trial to be governed by the principles decided by this court. Upon the trial under the mandate the judgment was in favor of the present defendant, and the plaintiff thereupon brought this writ of. error. The testimony, so far as the questions of law upon the merits are concerned, is substantially the same with that offered at the former trial.

The case, as it now comes before the court, is somewhat confused by the number of instructions asked for by the counsel for the different parties, and which are merely given or refused, without any explanatory instructions''by the court itself. This mode of proceeding complicates the case and makes it difficult to understand, from the exceptions, what principle of law the Circuit Court intended to decide.

;But it would seem, from the various instructions moved for by counsel and given or refused, that the court likened the case to- a suit for a malicious prosecution, and supposed it was to be governed by the same principles. And if the Circuit Court understood the opinion of this court to be placed on that ground, they were evidently mistaken. For by referring to the report of the case, in page 130, it will be seen that, the court said, in express terms, “ that for acts beyond his jurisdiction, or attended with circumstances of excessive severity, arising from ill-will or a depraved disposition, or vindictive feeling, he can claim no exemption.”

The case has no analogy to a suit for a malicious prosecution. That action will lie only in cases where a legal prosecution has been carried on without a probable cause. Johnston v. Sutton, 1 D. & E. 524. The action was originally applied to criminal proceedings; to cases where a party had maliciously, and without probable cause, procured the plaintiff to be indicted or arrested for an offence of which he' was not guilty. In cases of that kind, where the facts are admitted, or found by the jury, the court, and not the jury, decide whether there was probable cause or not for the prosecution; and if there was probable cause, an action for malicious prosecution will not lie, although the party who procured the arrest or indictment was actuated by malicious motives. And the reason for the rule, as stated by Blackstone, 3 Com. 126, is “ that it would be a very great discouragement to public justice if prosecutors, who had a tolerable ground of suspicion, were liable to be sued at law whenever their -indictments miscarried.” The action has been extended to civil as well as criminal cases where legal process has been maliciously used against another without probable cause. But .the action for a malicious prosecution is the only one in which the party is not liable, although he acts from malicious motives, and has in-' flicted unmerited injury upon another. The rule is not of a character to recommend it to favor; nor to induce a court of-justice to extend it beyond the limits to which it has heretofore been confined. And this is not an action for a malicious prosecution ; but for an assault and false imprisonment. And whether the acts charged were done or not,' and what motives actuated the defendant, are questions of fact exclusively for the jury; and probable cause or not is of no further -importance than as evidence to be weighed by them in connection with all th(e other evidence in the case, in determining whether the defendant acted from a sense of duty or from ill-will to the plaintiff.

It is an action by a marine against his commanding officer, for punishment inflicted upon him for refusing to do duty, in a foreign port-, upon the ground that the time of his enlistment had expired, and that he was entitled to his discharge. The case is one of much delicacy and importance as regards our naval service. For it is essential to its security and efficiency that the authority and command confided to the officer, when it has been exercised from proper motives, should be firmly supported in the courts of justice, as well as on shipboard. And if it is not, the flag of the United States would soon be.' dishonored in every sea. But at the same time it must be borne in mind that the nation would be equally dishonored, if it permitted the humblest individual in its service to be oppressed and injured by his commanding officer, from malice or ill-will, or the wantonness of - power, without giving him redress in the courts of justice.

At the time these events happened Captain Wilkes was in a distant sea, charged with the execution of a ¡high public duty. He was bound, by all lawful means in his power, to preserve the strength and efficiency of the squadron intrusted to his care, and was equally bound to respect the rights of every individual under his command. It is hardly necessary to inquire whether the plaintiff was or was not entitled to his discharge at the time he demanded it. It is, however, very clear that he was not. But to guard against a misconstruction of this opinion, it is proper to say that the right to determine the question was, for the time being, in Captain Wilkes. In his position as commander, the law not only conferred upon him this power, but made it his duty to exercise it. If, in his judgment, the plaintiff' was entitled to his discharge, it was his duty to give it, even, if it was inconvenient to weaken the force he commanded. But (if he believed he was not entitled, it was his duty to detain him ip the service. Captain Wilkes might err in his decision. But that decision, for the time being, was final and conclusive; and it was the duty of the plaintiff to submit to it, as the judgment pf the tribunal which he was bound by law to obey; and for any error of judgment in this respect; no action would lie - against the defendant.

Nor did the belief of the plaintiff as to his rights, furnish any justification for his disobedience to orders. For there would be an end of all discipline if the seamen and marines on board a ship of war, on a distant service, were permitted to act upon their own opinion of their rights, and to throw off the 'authority of .the commander whenever they supposed it to be unlawfully exercised. And whether the plaintiff was legally entitled to his discharge or not, his disobedience, when the question had been decided against him by the proper tribunal, was an act of insubordination for which he was fiable-to punishment.

So, too, as regards the degree of punishment to which he was subjected. It was-the duty of Captain Wilkes to maintain proper discipline and order among the officers and men under his command, .and if a spirit of disobedience and insubordination manifested itself in the squadron, he was bound to suppress it; and he might use severe measures for that purpose, if he deemed such measures necessary. And if, in his judgment, the continued refusal of the plaintiff to do duty made it proper to confine him on shore, rather- than on shipboard, in order to reduce him to obedience, — or necessary as an example to deter others from a like offence, he was justified in so doing; and while he acted honestly and from a sense of duty, and with a single eye to the welfare of the service in which he was engaged, the law protects him. He is not liable to an action for a mere error in judgment, even if the jury suppose that milder measures would have accomplished his object.

But, on the other hand, he was equally bound to respect and protect the rights of those under his command, and to cause them to be respected by others; to watch over their health and comfort; and, above all, never to inflict any severer or harsher punishment than he, at the time, conscientiously believed to be necessary to maintain discipline and due subordination in his ships. The almost despotic powers with which the law clothes him, for tb 3, time, and which are absolutely necessary for the safety and efficiency of the ship, make it more especially his duty not to abuse it. And if, from malice to an individual, or vindictive feeling, or a disposition to oppress, he inflicted punishment beyond that which, in his sober judgment, he would have thought necessary, he is liable to this action.

This is not a case where the punishment alleged to have been inflicted was forbidden by law, or beyond the power which the law confided to him. For, in such a case he would be liable whatever were his motives. But the fact to be ascertained in this case is whether, in the exercise of that discretion and judgment with which the law clothed him for the time, and which, is in the nature of judicial discretion, he acted from improper feelings, and abused the power confided to him to the injury of the -plaintiff.

The case, therefore, turns upon the motive which induced Captain Wilkes to inflict the punishments complained of. And this question is one exclusively for the jury, to be decided by them upon the whole testimony. And the rule of law by which they must be governed in making up their verdict is contained in a single proposition. It is this:

If they believe, from the whole testimony, that the defendant, in all the acts complained of, was actuated alone by an upright intention to maintain the discipline of his command and the interest of the service in which he was engaged, then the plaintiff is not entitled to recover. But, if they find that the punishment of. the plaintiff was in any manner or in any degree increased or aggravated by malice or a vindictive feeling towards him on .the part of Captain Wilkes, or by a disposition to oppress him, then the plaintiff is entitled to recover.

And, in deciding this question, they are to take into consideration the service in which Captain Wilkes was engaged; the place where these transactions happened; the condition of the vessels under his command; the spirit, and temper off the marines and seamen, as he understood it to be, in his own vessel and the other vessels of the squadron, gathering his knowledge from his own observation as well as the information of others; also the nature and character of the voyage yet before him, and which it was his duty, if possible, to accomplish; and how far the conduct and example of the. plaintiff might, in the judgment of the defendant, .be calculated to embarrass or frustrate it altogether, unless he was reduced, to obedience. And further, that, under the order to imprison him in the fort, if the jury believe it to be truly stated in the defendant’s testimony, the plaintiff was left at liberty to relieve himself from confinement at any moment by returning to his duty. .

But, on the other hand, the jury must likewise take into consideration’ the different punishments he received; his confinement in the fort on shore; the situation and condition of the place; the character of the persons by whose authority it was governed; his food; his clothing and general.treatment; and whether Captain Wilkes, through proper officers, inquired into his treatment and condition during the time of his confinement.’ For, certainly, when, -from whatever motives he had placed him out of the protection which the ordinary place of confinement on shipboard afforded, in a prison belonging to and under the control of an uncivilized people, it was his duty, through proper and trustworthy officers, to inquire into his situation and treatr ment, and to see that it was not cruel or barbarous in any respect ; and that he did not' suffer for the want of those necessaries which the humanity of civilized countries always provides even for the hardened offender.

As to the questions, of evidence, we thjAtT'thé letter of Mr. Emmons, with the papers attached "to it, mentioned in the first exception, was properly admitted, since it was calculated- to make an impression on the mind of Captain Wilkes- as to the temper and disposition of the marines in one óf the vessels, composing the squadron.

But the proceedings of the courts-martial, mentioned in the second exception in the cases of Ward and Riley, ought not to have been received. For some of the offences with which-they were charged were committed a long time before the refusal of the plaintiff to do duty, and were not, therefore, any evidence of a spirit existing at that time. And when the testimony in this exception is rejected, that offered by the plaintiff in the third exception to rebut it, will also be inadmissible, although it would be legal and admissible if the proceedings of the courts-martial could be legally received. But the evidence stated in both of these exceptions ought to have been refused.

The evidence stated in the fourth exception, as to the punishment of Weaver and Waltham, was properly rejected, as it can have no application to the matter in issue.

The opinion in the fifth exception is also correct. For, it appears from record, that Captain Wilkes claimed the right to detain the plaintiff in service during the. cruise, under the contract made by the plaintiff with Commodore Jones, in October, 1837, and not under the act of March 2, 1837. He could not, .therefore, certify that.he had detained him under that act.

But the testimony offered by the plaintiff in the sixth exception ought to have been received. For, after the defendant had offered testimony to show that American seamen were confined in the fort at the time the plaintiff was imprisoned there, the plaintiff had a right to show that it was not the usual place of confinement, and that refractory seamen, who could not.be safely confined on board their own vessels, were uniformly or generally confined on board American ships of war. The testimony on the part of the defendant was admissible, to show that he was not actuated by vindictive feelings in imprisoning the plaintiff'' in the fort, and that offered by the plaintiff to rebut it, and to show the contrary. . But neither was admissible for any other purpose. And it is for the jury to consider what degree of weight, if any, the testimony on either side mentioned, in this exception is entitled to, in deciding upon' the motives of Captain Wilkes, taking it in connection with all the evidence in the case.

. These six exceptions are the only ones which relate to questions of evidence. The rest of them apply to the merits of the eaue, ancl to the princlr!> s of law by which it is governed. Upon these we have airea- ( expressed the opinion of the court, without deeming it necesf vy to specify each particular instruction. given or refused, that ought, in our judgment, to be affirmed or reversed. We have already said, that there is but a single question of law and but one instruction proper. And, upon the grounds and for the reasons hereinbefore stated, the judgment of the Cirquit Court must be reversed and a venire de novo awarded.

Order.

This cause came on to be heard on the transcript of . the record, from the Circuit Court of the United States for the District of Columbia, holden in and for the County, of Washington, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, "with directions to award a venire facias de novo.


source: Caselaw Access Project

author: Mr. Justice DANTEL

license: Public Domain

text:
    Jesse Snead, late High Sheriff of Henrico County, and as such, Administrator de bonis non of Albert Seekamp, deceased, Appellant, v. Julia M’Coull, Widow of Neil M’Coull, Charles L. M’Coull, Administrator de bonis non of Neil M’Coull, and the said Charles L. M’Coull, Mary P., Julia L., and John James M’Coull, Heirs of Neil M’Coull, William Selden, and Edmund Christian, Marshal of the Eastern District of Virginia et al.
    Prior to the Revised Code of Virginia in 1819 the lien created upon land by a judgment was the same as in England. In both countries the following rules prevailed :
    1. That the lien of the judgment resulted entirely from the right of the plaintiff to sue out an degit, and charge the goods and the moiety of the lands of the debtor.'
    2. That the election so to charge them by an degit executed, discharges from liability the body of the defendant and the remaining moiety of the lands.
    3. That the capias ad satisfaciendum executed, is, pro tanto, a satisfaction of the judgment which releases propria vigore any previous lien upon the lands, and inhibits all recourse against the goods and chattels or lands of the debtor, with the- exceptions of the instances of death whilst charged in execution, or of an escape from prison, or a rescue.
    A discharge under the act of Congress for the relief of persons impris.oned for debt (2 Stat. at Large, 4, sec. 2,) did not restore the lien originally created by the judgment, and waived by issuing a ca. sa.

    In 1819 the State of Virginia revised her code. By a part which went into operation on the 1st January, 1820, it was enacted that, thereafter, the issuance of a ca. sa. Bhould constitute a lien upon lands.
    But as it did not relate to past liens, the purchaser of a lien created under the Revised Code had a good title when compared with a claimant under the lien which existed in 1817, but which had been waived by issuing a capíes ad satisfaciendum.

    After a case had been argued and was under advisement, a motion to permit the complainant to file a further bill by way of supplement and amendment, which would have made an essential change in the character and objects of the cause, was properly overruled in the Circuit Court.
    This was an appeal from the Circuit Court of the United States for the Eastern District of Virginia

      The facts in the case are fully set forth in the opinion of the court.
    It was argued by Mr. Johnson, for the appellant, and Mr. Robinson, for the appellee.

      Mr. Johnson said, that prior to 1819, the right to issue an execution was governed by the law of-1748 ; but in 1819 the Revised Code directed that a capias ad satisfaciendum created a lien upon land from its date. Before that, the law was the same as in England. The- decree below rests upon the principle that the lien is destroyed by a ca.,sa. But it is not so where the debtor-dies iA custody or escapes. . The reason is, that if the debtor is taken from, prison by a cause over which the creditor has no control, then the creditor does not suffer, but may resort to another execution.
    If then he is'discharged by an act of Congress, the same reason operates, and the creditor should not lose his lien. The second section of the act (2 Stat. at Large, 4, sec. 2,) expressly says that the judgment shall remain and be in full force. Note 68 Williams’s Saunders, where the cases are collected. 2 Leigh, 257; 4 Id. 425. These cases say that the English rule is the Virginia rule.
    The point made by Mr. ■ Robinson, upon which the decision turned, was the following:
    Under' the judicial act of 1789, sect. 14, (1 Story’s Laws U. S. 59,) as expounded in Wayman v. Southard, 10 Wheat. 24, the courts of the United States have power to issue writs of execution on their judgments; and under the process acts of 1789 and 1792, (1 Story ?s Laws U. S. 67, 257,) the forms, of executions and the forms and modes of proceeding in suits at common law, including (according to the decisions in Wayman v. Southard, 10 Wheat. 32, and Duncan v. Darst, et al. 1 How. 306,) the. conduct of the officer in the execution of the process/ whether mesne or final, and all the regulations and steps incident to it from its commencement to its termination, are to conform to the law of the State as it existed in September, 1789, so far as that law can be made to apply.
    The Virginia act of 1748, concerning executions, (5 Hen. Stat. 526,) which as„tb this matter was the law of the State in 1789, recognizing ‘ that persons recovering- judgments, may, at their election, prosecute writs of fieri facias,' elegit, and capias ad satisfaciendum for taking the goods, lands or body, and prescribing the foto of a writ of elegit as well as of other writs, it is not controverted that Seekamp’s administrator might in the first instance have sued out an elegit, and according to the terms and effect of that writ,- have' extended a moiety of all the lands of which M’Coull was seized at the date of the judgment, or at any time after.' But having made his election to take out a ca. sa. in the first instance, (as he had a right to do both under the Virginia act and the proviso to the process acts,) and having pursued the ca. sa., we insist— That the plaintiff has no longer the capacity to sue out an elegit, and no longer a lien from the date of his judgment on a moiety of the real estate of M’Coull, or any part thereof. 3 Bac. Abr. 393, 394, of Lond. ed. of 1832 ; 2 Wms. Saund. 68 b; Shaw v. Cutteris, Cro. Eliz. 850; Williams v. Cutteris, Cro. Jac. 136 ; Id. 143; Foster v. Jackson, Hob. 59, (which three cases were decided after Blumfield’s case, 5 Rep. 174); Lord Ellesmere’s Observations on Coke, p. 18; Stat. of 21 Jac.; Burnaby’s case, 1 Str. 663; Ex parte Warder, 3 Brown’s Ch. Rep., 191; Ex parte Cater, 3 Brown’s Ch. Rep. 216; Ex parte Knowell, 13 Ves. 193; 5 Hen. Stat. p. 531, sects. 3, 4, 5, 6, 7, 8, 9; Id. p. 539, sects. 27, 28; Willson v. Jackson, 5 Leigh, 102; 8 Hen. Stat. p. 329, sect. 8, 9; Bullock v. Irvine’s Adm’rs, Munf. 450; Shirley v. Long, 6 Rand. 735; 1 Rev. Code of 1819, p. 528, sect. 10; Jackson v. Heiskell, 1 Leigh, 257, 260, 261, 275, 276; Foreman v. Loyd, 2 Leigh, 284, 296, 298; Beverly v. Brooke, 2 Leigh, 445; 2 Tuck. Com. 345, 358, 373; Rogers, &c. v. Marshall, 4 Leigh, 425, 431, 432, 435; Leake v. Ferguson, 2 Gratt. 432; 1 Lomax’s Dig. 302; Beers v. Houghton, 9 Peters, 362; Duncan v. Darst, &c. 1 How. 309; 1 Story’s Laws U. S. 716; Bank of U. S. v. Weisiger, 10 Pet. 353; United States v. Stansbury, &c. 1 Pet. 573; Tayloe v. Thomson, 5 Pet. 367, 368, 369; United States v. Morrison, 4 Pet 124. Hayling v. Mullhall, 2 W. Bl. 1235 ; Eng. Insolvent Act of 7 Geo. 4, ch. 57, sect. 61, Evans’s Stat. p. 193, ll.; Collins v. Benton, 2 Man. & Grang. 861; 40 Eng. Com. Law Rep. 663; Freeman v. Ruston, 4 Dall. 214, Jackson v. Benedick, 13 Johns. 533.
   Mr. Justice DANTEL

delivered the opinion of the court.

This is an apr^nl from a decree of the Circuit Court of the United States Irom the Eastern District of Virginia, dismissing the bill of-the appellant who was plaintiff in that court.

On the 3d of December, 1814, Seekamp’s administrators recovered a judgment in the Circuit Court of the United States for the Eastern District of Virginia, against Neill M’Coull, for $5,688 damages and costs. In February, 1817, this judgment was affirmed with costs, and damages at the rate of six per centum, for which the Circuit Court gave judgment accordingly, in May, 1817 when the mandate was

On the judgment a cas. sa. issued the 29th of July, 1817, which was returned executed upon M’Coull, and a bond taken, with condition that he should remain within the bounds of the Superior Court of Henrico county. This admission to the jail limits seems to have been under the act of Congress of January, 6, 1800, (2 Stat. at Large, 4,) expounded in United States v. Knight, 14 Pet. 316. See 13 Hen. Stat. p. 373, sect. 37, and 1 Rev. Code of 1819, p. 535, sect. 30.

■ In what way M’Coull got back into the custody of the marshal does not clearly appear; and perhaps it is not material. He seems while imprisoned to have petitioned to have administered to him the oath prescribed by the act of Congress, for the relief of persons imprisoned for debt. The oath was administered on the 18th of July, 1821, and M’Coull then discharged from his imprisonment on this judgment.

Although this proceeding was under the act of Congress, which has no provision requiring a conveyance from the debtor, a deed séems to have been executed by M’Cpull, under the idea that the State law in 1 Rev. Code of 1819, p. 537, was in some way to be applied to the case. The deed is to John Pegram, then marshal of the Eastern District of Virginia, spd conveys to him and his successors in office, to be disposed of according to law, such interest as M’Coull, on the day of his discharge, had in any lands or other property; stating, however, on the face of the deed, that all the property had theretofore been conveyed by deeds of record.

It appears that on the 20th of September, 1812, a tract of land in Henrico, known by the name of Marion Hill, was conveyed by Walter Shelton, as commissioner, to M’Coull, and by M’CouU to John’ Parkhill as trustee, to secure the purchase-money. M’Coull paid to Shelton the money secured by this deed of bust, but failed to get a deed of release from Parkhill.

Between June, 1814, and December, 1817, M’Coull sold, and by deeds of bargain and sale conveyed, to individuals, certain lots which were part of the Marion. Hill tract.

M’Coull died intestate, leaving a widow, Julia, and five children, to wit: Ann, Charles L., Mary P.,. Julia L., and John J., the three last' of whom were infants when this suit was brought.

On the 19th of February, 1829, by an agreement under seal, the widow and two eldest children of M’Coull, in consideration of $1,000, transferred and surrendered to William Selden, a. certain part of the Marion Hill tract; it being agreed that if they should within six years make to Selden a good title, he should in addition pay to them, or their order, $20 for each acre to which such good title should be made, and if within the six years they should not make him a' good title, then they were to surrender all right of property as well as possession.

On the 14th of September, 1829, a deed of release was made from Parkhill and Shelton, (the parties to the deed of trust jof the 20th of September, 1812,) to Selden, which, after reciting Selden’s purchase of part of the Marion Hill tract, (supposed to be of 100 acres,) and the desire of the widow and heirs that a deed of release should be executed to Selden for that part, contains a full release of the legal title from Parkhill to Selden.

About 14 years after, M’Coull was discharged as an insolvent, to wit: in May, 1835, Seekamp’s administrators filed'their original bill, claiming that by their judgment they acquired a lien upon the lands of M’CouU; alleging that of the land purchased from Shelton a considerable portion remained in M’Coull’s possession unsold at the date of the deed to Pegram, “ which by the provisions of the said deed was subjected to the payment of the said judgment; ” charging that Selden purchased with knowledge of the said judgment and of the deed to Pegram, given to secure it; that Selden knowing from the situation of the-affairs of M’Coull, and the lien of the plaintiffs, that no good title could be made him by the widow and heirs of M’Coull, did in fact pay them a very trivial consideration for the said 100 acres, compared with the full value thereof; and claiming' that they have a valid subsisting lien upon the said 100 acres, and that the same should be applied in satisfaction of their judgment.

The bill also mentions certain lands sold and conveyed by Bartlett Still to M’Coull, states that these lands remained in M’Coull’s possession till his,-death, and claims that they are liable under the deed to Pegram to satisfy said judgment.

The plaintiffs further claim that they have a right to subject all the other lands and property conveyed in said deed executed for their benefit, to the satisfaction of said judgment in whatever hands they may be found, as said deed operated to bind the property thereby conveyed, from the date of its admission to record.

The bill makes defendants, the widow, heirs and administrators of M’Coull, William Selden, and Edmund Christian, the successors (as marshal) of John Pegram, and besides asking certain discoveries, prays the court to decree a sale of the said 100 acres of laird conveyed Selden, and the two parcels conveyed by Still to M’Coull, and whatever land or other property, subject to the debt of Seekamp’s administrators,' may have descended or come to the hands of the widow and heirs of M’Coull, and that so much of the proceeds of said sale as may be necessary to pay off and discharge said judgment with interest and costs, may be applied in satisfaction thereof.

Selden alone filed answer. In this answer he insists j;hat by the deed of September 14,1829, from Parkhill an.d others, the legal title is vested in him, and states, that being aware of many outstanding incumbrances upon the equitable right, he has endeavored to take in those incumbrances which gave preferable liens.

The answer of Selden sets forth amongst other incumbrances prior in time to the deed to Pegram, one created by a judgment of Taylor and Hay rendered in their favor in April, 1821, in a State court of Virginia, against M’Coull, and a ca. sa.-levied on his body the 28th of April, 1821, under which he was discharged the 21st of July, 1821, by taking the oath of an insolvent debtor; and states that Selden, being advised that this execution of ca. sa. being levied after the 1st of January, 1820, when the act in the 1st vol. of Rev. Code of 1819, p. 528, sect. 10, commenced, bound the real estate of M’Coull from the time when it was levied, obtained an assignment of this judgment from the representatives of William Dandridge, for whose benefit the judgment was obtained. This lien being prior to the date of the deed to Pegram, under which the plaintiffs claim, he insists has preference over their claim.

'He insists that the fien of the plaintiffs judgment was exti’n-' guished by the levy of his execution on the body of M’Coull, and that the plaintiff can have no other lien on the property of 'M’Coull, except the deed made to Pegram. That amongst the deeds made by M’Coull prior to that last mentioned, was one bearing date on the 26th day of May, 1814, and another on the 2d of January, 1821, for the benefit, amongst others, of the wife of M’Coull, in consideration of the relinquishment of her dower in the property of her husband, sold and aliened by him; which deeds, as Selden claims also under the widow and heirs of M’Coull, he insists should enure to his protection against the claim of the plaintiff. After this answer an order was made June 6,1836, giving leave to the plaintiff to amend his bill. Nothing was done under this leave for six years, viz.: until June 9th, 1842, when a bill of revivor was filed in the name of the administrator de bonis non, of Seekamp against Charles L. M’Coull, administrator of Neill M’Coull. By an order made on the 19th of December, 1843, it is stated that the suit was abated as to the widow of M’Coull, and that the plaintiff had by leave, on that day filed an amended bill, making defendants, the representatives of Dandridge, for whose benefit the judgment in favor of Taylor and Hay had been'rendered and that those representatives had filed their answer.

This answer insists that the lien of the representatives of Daiidridge (claiming through Taylor & Hay) is preferable to that of the plaintiff; that the plaintiff, by taking his ca. s-a., released the lien of his judgment, and can claim only by force of the surrender made by M’Coull when he took the insolvent oath; the ca. sa. of Taylor & Hay levied the 28th of April, 1821, constituted (by force of the statute of Virginia) a lien on lands from the time of levy, which gave their claim a priority over that of the plaintiff; that moreover, Taylor & Hay (and in their stead the representatives of Dandridge) have a right to be substituted for James Carter and John M’Coull, (sureties for Neill M’Coull to Taylor & Hay,) for whose benefit there was executed a deed of the 10th of January, 1821.

The cause was argued at the May Term of 1846, and the court took time to consider;, at the June' rules of the court .'in 1848, a notice was issued by Seekamp’s administrator, that he would apply for leave to file an amended and supplemental bill, which application-being opposed on the part of Selden and of those who had become some time previously purchasers from him, the court on the 7th of June, 1849, after hearing the peti-tion and the objections made thereto, refused leave to file the proposed bill either as an amended or supplemental bill, and decreed that the bill of the complainants be dismissed with costs.

The important question upon this record and that upon the determination of which the decree of the Circuit Court should be affirmed or reversed, is a question of priority between these parties, growing out- of their respective acts and the legal consequences flowing from those acts, with reference to the subject claimed by them both, as having been once the property of Neill M’Coull, from whom the rights of both parties are deduced. For the appellant, it is insisted, that by operation of'his judgment in May, 1817, the levy of his capias ad satisfaciendum on that judgment in July of the same year, and the discharge from custody of M’Coull under the insolvent law of the United States, and his deed at the time of that discharge to Pegram the marshal, there was created a lien in behalf of the appellant on all the property held by M’Coull, including the land purchased by the defendant Selden, creating a priority in favor of the appellant which neither the acts nor the rights of Selden, nor of others deriving title from M’Coull subsequently to the judgment, execution, and deed above mentioned, could divest. On behalf of Selden and those whom he is intrusted to protect, it is contended, that whatever might have been the capacity of the appellant’s judgment to bind the lands of M’Coull from the date of the judgment, by a proceeding under it such as would have been proper to maintain and enforce that lien, yet by the election of the appellant to take the body of .M’Coull and to retain him in custody from 1817 to 18th of July, 1821, the lien of the judgment was released, and quoad all property of the debtor at the date of the judgment could be revived by one of two events only, viz., the escape of the debtor from prison, or his death whilst in custody, the occurrence of neither of which events is pretended. That the act of Congress under which M’Coull was discharged as an insolvent debtor, created or preserved no specific lien, and the deed to Pegram could have no such effect, and conveyed, if any thing, only such interest as M’Coull possessed at the date of that deed, the deed itself declaring by its terms, that all the property of M’Coull had been theretofore conveyed by prior conveyances of record. That by the acquisition of the legal title to the land in dispute from Parkhill, to whom the legal title had been conveyed by M’Coull, three years anterior to the judgment against him by the appellant and the purchase by Selden, of the widow and heirs of M’Coull, and the assignment to him of the lien created by the judgment in favor of Taylor & Hay, against M’Coull, and the discharge of the latter under a capias ad satisfaciendum sued on that judgment and executed on the 28th of April, 1821, previously to the deed to Pegram, Selden had obtained a complete title to the land in question, which could not be overreached or affected by the judgment of the appellant. The truth or the incorrectness of the positions assumed by these parties respectively, must be settled by a proper construction of the laws of the State within which the land in dispute is situated, and within which all the proceedings referred to have occurred.

By the decisions of the highest tribunal in Virginia, the law of that State, prior to the statute of 1819, with respect to the lien of judgments, has been expounded in very close conformity with the common and statute law of England, from which it appears to have been adopted. Thus we find it laid down by compilers and by commentators upon the law of England, that the lien of judgments upon lands in that country was created by the Statute de mercatoribus, also styled the Statute of Acton Burnell, 11th of Ed. 1st, and by the Statute of Westminster 2d, 13th Edward, 1st Cap. 18, by the latter of which statutes tire writ of elegit was given by enacting, that “ he who recovereth in debt or damages, may have either a fieri facias of the chattels of the debtor, or a writ on which the sheriff shall deliver to him all the chattels of the debtor, saving only his oxen and beasts of the plough, and half of his land, until the debt be levied upon a reasonable price or extent.” Vid. Bacon’s Abridg. tit. Execution A, referring to the statutes above mentioned, and citing Hobart, 60, and 2 Roll. Abr. 475.

It is said by Bacon, on the authority of Dalton’s Sheriff, 144, that the statute of 25th Ed. 3 Cap. 17, subjected the person of the debtor and gave the capias ad satisfaciendum against him in debt, detinue, &c., in the case of a common person, though by this same compiler, it is said, that doubts have been suggested down to a period as late as the time of Lord Mansfield, as to the mode by which a proceeding existing at common law confessedly in behalf of the king alone, and affecting so gravely the personal liberty of the subject, had been placed at the discretion of private persons. Leaving these questions concerning the remote origin of the different modes of final process, as belonging peculiarly to the province of the antiquary, we proceed so far as is necessary for the decision of the case before us, to ascertain the effect of them as settled by judicial interpretation in England, and in the jurisprudence of Virginia, upon which by custom and by statutes they may have been ingrafted. The force and operation of these different modes of final process in England in reference both to the parties resorting to them and to those on whom they are brought to bear, will be seen under the several divisions of the title Execution in the 3d vol. of Bacon. They have also been- traced with his characteristic perspicuity and method by Mr. Justice Blackstone, from p. 414 to p. 421 of the 3d vol. of his commentaries, Chap. 26. In 3d Bacon Abr. Execution D. p. 392, the law is thus stated, “ when the plaintiff has judgment he has it in his election to sue out what execution he pleases; but he cannot regularly take out two different executions on the same judgment nor a second of the same nature unless upon failure of satisfaction of the first. Therefore, if the plaintiff upon a judgment or recognizance at common law sues out an elegityhe can have no capias ad satisfaciendum after-wards to take the body, because he hath determined his choice by that writ to the goods and chattels and a moiety of the land, which being entered upon the record, he is thereby estopped, and though he takes but an acre of laud in execution, yet it is held a satisfaction of the debt, be it never so great, because in time it may come out.” The exceptions to this restriction on the plaintiff’s right to another execution, are the return of nihil on the first, and the return. by the sheriff that he hath levied only on the goods of the defendant; because the plaintiff being entitled to levy on the land also, should not be precluded from the benefit conferred by the statute. But if the land be delivered, though of never so little value, that will be a bar, for the sheriff hath delivered the moiety of the land according to the statute. For this are cited, Bro. Elegit; 15 Roll Abr. 896; Hob. 57; 5 Leon. 87 ; 2 Bulst. 97, and other authorities. In conformity with the law as just stated, is the doctrine of Mr. Justice Blackstone, who concludes his remarks upon this subject in the following words, vol.- 3d, p. 419: “ This execution or seizing of lands by elegit is of so high a náture, that after it the body of .the defendant cannot be taken, but if execution can only be had of the goods because there are no lands, and such goods are not sufficient to pay the debt, a capias ad satisfaciendum may then be had after the elegit, for such elegit is in this case no more than a fieri facias, so that body and goods may be taken in execution, or lands and goods ; but not body and land too, upon any judgment between subject and subject in the course of. the common law.” The origin and effect of the elegit have been thus dilated upon, as proper to define the foundation and effect of the lien of a judgment upon lands, to show that it mounts no higher than the elegit itself, or the capacity, of the judgment creditor to resort to that process, and that where such capacity was wholly taken away or suspended, the lien was affected in the same degree. With regard to the effect of the capias ad satisfaciendum upon the'rights of the parties to a judgment, we are told by Blackstone, vol. 3d, p. 415, that “ the writ of capias ad satisfaciendum is an execution of the highest nature, in as much as it deprives a man of his liberty till He • makes the satisfaction awarded, and therefore, when a man is once taken in execution upon this writ, no other process can be sued out against his lands or his goods.”

So in 3d Bac. Abr. tit. Execution D. p. 395, it is said: “ It was formerly held, that if a person taken on a capias ad satisfaciendum died in execution, the plaintiff had no further remedy, because he had determined the choice by this kind of execution, which, affecting a man’s liberty, is esteemed the highest and most rigid in the law, and for this aré cited Foster v. Jackson, Hob. 52; Williams v. Critteris Cro. Jac. 136 ; and Holt Abr. 903; and it has been ruled that if the plaintiff consent to 'the defendant being discharged out of execution upon an agreement, he cannot afterwards retake him, although the security given by the defendant on his discharge should afterwards be set aside; vid. 1 Burr. 2482; 1 T, R. 557 ; 2 East, 243. Ajad as late as 1806 the following language is held by the Lord Chancellor in the case, ex parle Enownell, 13 Ver., 193. “ Considering■ the bankruptcy out of the case, it is clear that by the taking the body in execution the debt is satisfied to all intents and purposes. If the debtor being in execution becomes a bankrupt, the creditor, in reason and justice, must have a right to. elect; not having contemplated that event, which deprives him of the fruit of his execution, . But when the commission has previously issued, and the creditor - therefore takes his execution, apprised of the disposition tobe made-of the effects, and that-there may be a-certificate and has his choice, that step, upon the same reason must be an election, and ,the debt is satisfied, whether by payment or by having the body in execution is not material.” The ■ only known exceptions to the ¿ffect of the capias ad satisfaciendum executed are, 1st, the provision of the statute of 21st Jac., 1st. Cap. 24, that if the defendant shall die whilé charged in execution, the plaintiff may, after his death, sue out a new execution against his land, goods, or chattels; and the instances of an escape or rescue of the party taken in execution; in which two last instances it has been ruled, that although the sheriff is thereby liable because he ought to have taken the posse comitatus, yet the plaintiff may take out any new execution, and shall not be compelled to take his remedy against the sheriff, who may be dead or insolvent.

From this view of the law, as ruled by the English courts, the following points may-be considered as conclusively ruled in that country: 1st. That the lien of the judgment results entirely from the' plaintiff to elect to charge the goods and the moiety of the lands of the debtor. 2d. That the election so to charge them by an elsgit executed, discharges from liability the body of the defendant and the remaining moiety of the lands. 3d. That the capias ad satisfaciendum executed, is pro tanto a satisfaction of the judgment, which releases proprio vigore any previous lien upon the lands, and inhibits all recourse against the goods and chattels or lands of the debtor, with,the exceptions of the instances of death, whilst charged in execution, or of an escape from prison, or a rescue.

Recurring now to the laws of Virginia, -upon these same subjects, we find as early as the year 1748 (22 George II.) the statute of the colonial legislature beginning with the. following preamble: “ Whereas by the common law of England and divers acts of Parliament, which are binding upon the subjects of this colony, all persons recovering any debt, damages or costs, by the judgment of any court of record, may, at their election, prosecute writs of fieri facias, elegit, and capias ad satisfaciendum within the year, for the taking of the goods, lands, or body of persons against whom such judgment is obtained, to the end the said several writs issuing out of any of the courts of record within-this dominion, and the manner of executing and returning the same may be uniform, and the mischiefs arising from incorrect forms and insufficient returns of such writs prevented, Be it enacted, &c.” The first thing which strikes the attention in reading this preamble is not only its explicit recognition of the common law and statutes of the mother country, with respect to the binding force and operation of judgments, but also of the modes, and the éffeet of those modes, .as they were known in the mother country, to be carried into operation. Thus it, is declared that there shall be a fieri facias for taking the goods- — an elegit for taking the lands, and a capias ad satisfaciendum for taking the body of any person against whom such judgment is obtained. Not only are these forms of proceedings adopted with the import which their mere terms might convey, but they are adopted with direct reference to the common law. and statutes of England, (and of course to the judicial interpretations of the law) as decisive of their operation and effect. The statute then proceeds to prescribe the forms of these several writs, and the returns to be made upon them, following, it is believed, literally, the forms in the courts of law in England, with such exceptions only as the difference in situation and the style of the courts rendered indispensable; and in the 3d and 4th sections enacts the provisions contained in the stat. of the 21st of James I., Cap. 24th, authorizing the renewal of execution against the lands and goods of a debtor dying in execution; and protecting the title of purchasers from the prisoner to lands bond fide sold, by him- for the payment of any of his creditors, at whose suit he shall have been in executiol., and the money paid or secured, to be paid to such creditors with their privity in discharge of his debts, or some portion thereof. The construction of this statute, which, up to the revisal of the laws of Virginia made in 1819, and going into effect in 1820, controlled the question of judgment lien, and the rights of purchasers from a debtor in execution is understood to be definitively settled, and to have established the rules in the State in conformity with the doctrine of the English courts, that the lien of a judgment depends entirely on the right or capacity of the plaintiff to sue out an elegit, and that ,by electing a capias ad satisfaciendum, the lien of the judgment is so far destroyed as to be inoperative, except in the instances of death in execution, and of an escape. Indeed, the provision in the statute of 21st James L, and in the Virginia act of 1748, which protect bond fide sales by debtors in execution, are wholly' inconsistent with the idea of a continuation of a judgment lien during the operation of a capias ad satisfaciendum executed, for the lien of a judgment, is a legal lien commencing and coeval with the judgment itself, and unless released by charging. the debtor in execution, would by its own force and effect go back to the date of the judgment, and override all mesne alienations or rights of every description. But this part of the Virginia statute of 1748 has been clearly expounded by the Supreme Court of Virginia, -in the case of Bullock v. Irvine’s administrators, reported in 4 Munford, 450, which was a suit brought to vacate a sale made by a debtor in execution to one of his creditors, and which sale the Chancellor had decreed to. be void as to creditors under the laws of the State concerning executions. The Supreme Court, in reversing the decree of the Chancellor, uses this language: “ That instead of the decree rendered by the Chancellor in this case, he ought to have directed an issue, to try. what was the amount of the consideration which passed from the said Hannah Bullock to James Bailey (the debtor in execution) for the land in question,' and whether there was any secret. agreement or understanding between the said parties, that the said land was to be holdén by the former for the use and benefit of the latter. The comb is further of opinion, that if it shall turn out upon the issue aforesaid, that a reasonable consideration did pass as aforesaid, and that there was no such secret agreement or understanding, that then and in that case the bill of the appellees should be dismissed, the transaction.in that view being only the preference of one bond fide creditor over another.” Thus it is seen that the bona fides of the transaction, and not the quality or extent of the legal lien, determined the validity of the transaction, for the existence of such a lien would have deprived the debtor of all power of alienation.

In the revisal of the laws of Virginia, made in the year 1819, (going into operation in the year 1820) a provision was introduced by the tenth section of the law concerning executions, declaring that every sale, conveyance, and transfer of any lands or terfements made by any person charged in execution for any debt or damages, shall be absolutely null and void, as to the creditor at whose suit he is so charged in execution, unless such sale, transfer, and conveyance be absolute and bond fide, and be made for the payment of the debt and damages due to such creditor or creditors; and that all executions of capias ad satisfaciendum, levied after the commencement of this act, shall bind the real estate of the defendant from the time when they shall be levied. It has been insisted, that this execution-lien, given by the 10th section of the act of February, 1819, so attaches upon the lands and tenements of the debtor, as to cut out all junior incumbrances by judgment, whilst the debtor remains in execution, although the regular proceedings be had upon such junior judgments to enforce the lien created by them (as judgments) upon the lands of the debtor. The first interpretation given to the 10th section of the statute of 1819, by the Supreme Court of Virginia, was in accordance with the position just mentioned, as will be seen by- the case of Jackson v. Heiskill, 1 Leigh, 257. But the case of Jackson v. Heiskill having been decided by a bare quorum of the court, and by a bare majority of that quorum, the question so determined was reconsidered by a full court, in the case of Foreman v. Loyd, &e., reported in 2 .Leigh, 284; and by the court, with the exception of one judge, the case of Jackson v. Heiskill was overruled, and the following interpretation given to the 10th section of the statute of 1819, and to the execution-lien created thereby, namely: That, where several creditors recover judgment and sue out writs of capias ad satisfaciendum against the debtor, upon which he is taken and charged in execution; and then another creditor recovers judgment against the same debtor, and sues out an elegit on which his lands are extended, and a moiety of them delivered, and then the debtor is regularly discharged from the writs of capias ad satisfaciendum as an insolvent debtor, putting into his schedule the whole of his lands which had been extended under the elegit, the lien of the writs of capias ad satisfaciendum does not overreach and avoid the extent under the elegit. The case of Rogers v. Marshall, 4 Leigh, is perhaps a still stronger illustration of the extent to which the execution-lien may be affected by a junior incumbrance; as in this last case there was no intervention of a judgment, or of legal process, to operate against the execution-lien; but, in this instance, between the period Of the judgment rendered and the capias■ ad satisfaciendum .executed, sundry mortgages were made by the debtor to secure debts to other creditors. It was held that, by the actual service of the capias ad satisfaciendum on the debtor, the lien of the judgment was destroyed, that the creditor could only stand on the lien given in the capias executed by the statute of 1819, sect. 10, and that, therefore, the mortgagees were entitled to precedence. The same doctrine is affirmed in the case of Leake v. Ferguson, as late a,s 1846, and reported in 2 Grattan, 419.

Upon the review here taken of the decisions' of the courts in England upon the subject of judgment-lien, and of the interpretation put by the Supreme Court of Virginia upon the statutes of that State of 1748, reenacted in the revisáis of 1794 and 1803, and of 1819, we are brought necessarily to the following inquiries: 1st. What lien was ever possessed by the appellant and those he represents upon the lands of M’Coull? And 2d. In what way has such lien been affected by the acts of appellant ? It is certain that, on the 22d May, 1817, the appellant held a lien by judgment upon all the lands, tenements, and hereditaments of M’Coull; but it is equally certain that, by levying a capias ad satisfaciendum upon the body of M’Coull, in .July, 1817, he released the judgment-lien upon such lands and tenements, according to the interpretation given of the statute of 1748, and also by that placed upon the statute of 1819, sect. 10. That the lien surrendered by the service of the capias ad satisfaciendum was never revived by the force of the former statute, inasmuch as there was neither -an escape nor a dying.in custody ; and that no execution-lien was created by the service of a capias ad satisfaciendum, and the admission of M’Coull, tq the oath of an insolvent debtor, in virtue of the 10th section of the act of 1819, as that section, by express language, applies only to executions levied after the commencement of the act of 1819, and M’Coull was already in custody under an execution levied in July, 1817, more than two years anterior to the passage of that act, and under process sued out under the statute of 1748, continued in the revisáis of 1794 and 1803. Iri truth, the oath of insolvency administered to M’Coull was not in virtue of either of the State laws above referred to, but under the act of Congress of the 6th of February, 1800, which oath of insolvency created no specific lien in favor of the appellant, and the deed to the marshal, which was neither ordered nor required by the act of Congress, could create no such specific or exclusive lien, and upon its face it purports to create none; but, on the contrary, recites that all the property of M’Coull had been conveyed by deeds previously made and recorded. The only lien by execution upon the lands of M’Coull, in virtue of the statute of 1819, sect. 10, disclosed by the record, is that of Taylor and Hay, arising' from a judgment rendered in a State court of Virginia against Neil M’Coull, in April, 1821, and that lien, whatever its effect may be, must enure to the benefit of Selden, who holds an assignment of the judgment against M’Coull from the beneficiaries thereof, it being prior in date to the deed of Pegram. The lien which once existed, in virtue of the appellant’s judgment, having been extinguished by the levy of the capias ad satisfaciendum upon the body of M’Coull, and there being no revival thereof by any of the causes known to the law, we are unable to perceive why Selden, who was a purchaser from the widow and' heirs of M’ Coull, might not' fairly and properly obtain the legal title from Parkhill, in whom that title was vested, or get in the lien of the execution existing in favor of Hay and Taylor. By doing so, he invaded no right of the plaintiff, who had relinquished his judgment-lien, and had acquired no other under the deed to Pegram, which professes to convey to him none, and to which he was no party. Selden, having paid his money, committed no wrong on the plaintiff by drawing to himself the elder legal title outstanding in Parkhill, and by for-tifying it by the execution-lien, of Taylor and Hay, which clearly had precedence of the plaintiff.

After this cause had been heard in argument and taken under advisement by the Circuit Court, the plaintiff petitioned that court to permit him to file a farther bill, by way of amendment and supplement to the original bill and bill of revivor previously filed in the cause; and, after being heard by counsel upon his petition, the court refused to grant the prayer thereof, on the grounds that the application was made at too late a period, and that the changes proposed by the plaintiff in the character of the cause would have been in reality the presenting of an entirely new case, rather than an amendment of the original bill. This refusal of the Circuit Court we hold to have been sound in principle; and it is sustained by the express language and authority of this court, in the case of Walden et al. v. Bodley et al., which declares that, although “there are cases where amendments may be permitted at any stage of the proceedings in the cause, as where an essential party has been omitted; yet amendments which change the character of the bill or answer, so as to make substantially a new case, should rarely, if ever, be admitted after the cause is set for hearing, much less after it has been heard.” Vid. 14 Peters, 156. Moreover, a fact which imparts greater force to the refusal of the Circuit Court to permit amendment at so late a stage of the proceedings is this, that the application to that court appears to have been accompanied with no evidence, and not even by an affidavit, to show that the amendments'desired could not have been made portions of the original bill; on the contrary, it is manifest, that they might have formed a part of the case as originally presented to the Circuit Court, if at any time it were proper to incorporate them with the subject-matter, and with the objects proposed by the original bill. The prayer of the original bill was limited to the enforcement of an alleged judgment-lien'upon specific property purchased by the defendant, Selden, and to recourse against the heirs and widow of M’Coull, of whom Selden had purchased; the proposed change, by way of amendment and supplement, is a general bill for discovery and relief against all persons alleged or supposed to have been purchasers ox grantees from M’ CquII, and for satisfaction out of the property purchased by him, or to which he had title at the date of the original judgment in favor of Seekamp. Such an essential change in the character and objects of the cause, proposed, too, after a hearing, and when it was manifest that the object of the original bill, namely, — the lien of the judgment, no longer existed, could not have been accorded to- the plaintiff by any sound rule of practice. On either aspect of his case, as presented by the appellant, we think that he established no ground for equitable interposition in the Circuit Court, and approving the decree of that court dismissing the bill of the appellant, we hereby order, that the same be affirmed.

Order.

This cause came on to be heard on the.transcript of the record from the Circuit Court of the United States for the Eastern District of Virginia, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the Circuit Court in this cause be, and the same is hereby, affirmed, with costs.