The Gran Para. ties, and they, accordingly, gave a stipulation for 1825. the amount" for J. D. Daniels, claimant." But Daniels himself was not a party to the stipulation. By a subsequent order of the Court, the money was delivered by the Marine Bank to Stansbury, who signed a receipt for the same as attorney for Daniels, upon a certificate of the deposit originally given by the Cashier of the Bank to Daniels, and by him delivered over to Stansbury. A decree of restitution having passed in the Supreme Court, after the mandate was brought into the Circuit Court, the libellant prayed that execution might issue against Daniels to enforce the performance of the decree, and that a monition, or other proper process, might issue against the sureties to the stipulation. To this course the proctor for the claimant objected, and the Court finally ordered admiralty process to issue against the stipulators, but refused to make any further order under the motion of the libellant. The case is now before us by appeal from that decision. Several points have been urged in the argument, upon which, in the present stage of the cause, it is not thought necessary to express any opinion. Assuming Daniels to be a party to the cause, in virtue of the claim made in his behalf by Stansbury, it still remains to show, that the process of execution is, in the first instance, to be issued against him. He is not a party to the stipulation, and so far as any remedy is to be sought upon that, it lies exclusively against the The Gran become bound by it. 1825. sureties, since he, as principal, has not, personally, or through the instrumentality of any agent, The remedy against him proceeds, must be sought solely upon the ground, that he has the actual or constructive possession of them in virtue of the delivery to his agent under the order of the Court below. If the property had remained in the custody of the Court, there is no pretence tó say, that he would be liable for the restitution. It is the delivery to him, or to his authorized agent, which can alone give rise to any liability on his part, whether he be a party to the suit, or only a custodee of the property or its proceeds. In such cases, the usual proceeding in the admiralty is, not to award execution against the party, for that would preclude him from showing, in his defence, that he never had any actual or constructive possession, or that he was discharged from all liability. The proper course is, to issue a monition to Daniels in the usual manner, upon the return of which he may appear and justify himself, and interpose such allegations on the merits as may bring all the matters fully before the Court for judgment. This is the constant practice of the admiralty; and the subsequent proceedings are to be according to the common usage, upon which it is unnecessary to comment. It is, therefore, the opinion of this Court, that the Circuit Court was right in refusing to grant an execution against Daniels, under the circumstances, and that its decretal order ought to be The Gran affirmed; but inasmuch as it appears, that the 1825. principal question between the parties has been, whether any process whatsoever could be awarded against Daniels, it is directed that the affirmation of the order be without prejudice to the award of a monition against Daniels in the common form of the admiralty. DECREE. This cause came on, &c. on consideration whereof, it is ORDERED, ADJUDGED and DECREED, that the decree of the Circuit Court, refusing to issue an execution against John D. Daniels, as prayed for by the libellant in his petition, be, and the same hereby is, affirmed, with costs; without prejudice to the libellant, to apply to the said Circuit Court for a monition against the said John D. Daniels, in the premises, according to the usage of the admiralty, that being a process to which the libellant is entitled by law. 1825. The Palmyra. Feb. 19th. [PRACTICE.] The PALMYRA. DEPAU, Claimant. No appeal lies from a decree of restitution, with costs and damages, in the Circuit Court; the report of the commissioners appointed to ascertain the damages not having been acted on by the Court when the appeal was taken. Such a decree is not a final decree. APPEAL from the Circuit Court of South Carolina. This was the case of an armed vessel called the Palmyra, taken under Spanish colours by the United States' schooner Grampus, (commanded by Lieutenant Gregory, and cruising, with instructions from the President, against pirates,) and brought into the port of Charleston, S. C. for adjudication. A libel was filed by the captors, and a claim interposed by Mr. Depau, as agent of the alleged owners, of the Palmyra, Spanish merchants domiciled at Porto Rico, and of the captain, officers, and crew. In the District Court the libel was dismissed, without costs and damages against the captors. The decree of restitution was affirmed in the Circuit Court, with costs and damages, and the cause was brought by appeal to this Court. It was suggested by the Attorney General, (with whom was Mr. Hayne,) for the appellants, that after the decree of restitution, and for damages, in the Circuit Court, there had been a reference to commissioners to ascertain the 1825. amount of damages, and before the report of the The Palmyra. commissioners had been acted upon by that Court, the appeal was taken. The question was, whether the appeal was not taken too early, the Judiciary Act of March 3, 1803, c. 353. [xciii.] having confined the right of appeal to "final decrees."a Mr. Tazewell, contra, stated, that in the District Court there was a decree of restitution and a denial of damages. Both parties appealed from that decree, the libellants being dissatisfied with the decree of restitution, and the claimants with the denial of damages. These were, then, cross-appeals, and consequently there might be an appeal from the decision of the Circuit Court decreeing restitution, and affirming, in this respect, the decree of the District Court, although the decree of the Circuit Court, reversing that of the District Court as to damages, and awarding the latter to the claimants, was as vet undetermined. Mr. Chief Justice MARSHALL delivered the opi- Feb. 20th. nion of the Court. The Court has had the question submitted in this cause under consideration, and is of opinion, that the appeal is not well taken. The decree of the Circuit Court was not final in the sense of the act of Congress. The damages remain undisposed of, and an appeal may still lie a Ray v. Law, 3 Cranch, 179. |