1818. Gelston V. Hoyt. ular prince or state by name, against whom the ship was intended to cruise. A plea justifying a seizure and detention by virtue of the 7th section of the act of 1794, under the express instructions of the president, must aver that the naval or military force of the United States was employ ed for that purpose, and that the seizor belonged to the force so employed. The 7th section of the act was not intended to apply except to cases where a seizure or detention could not be enforced by the ordinary power, and there was a necessity, in the opinion of the Presi dent, to employ naval or military power for this purpose. To trespass for taking and detaining, and converting property, it is sufficient to plead a justification of the taking and detention; and if the plaintiff relies on the conversion, he should reply it by way of new as signment. A plea alleging a seizure for a forfeiture as a justification, should not only state the facts relied on to establish the forfeiture, but aver that thereby the property becaine, and was actually, forfeited, and was geized as forfeited. ERROF to the court for the trial of impeachments and correction of errors of the State of New-York. This cause had been removed into that court by the present plaintiffs in error, by writ of error directed to the supreme court of the said state. In January, 1816, the court of the state of New-York for the correction of errors in all things affiruted the judgment which had been rendered by the supreme court of the state of New-York, in favour of Hoyt, the present defendant in error. And before the com ing of the writ of error issued from this court, the said court for the correction of errors of the state of New-York, according to the laws of the state of NewYork, and the practice of that. court, had remitted the record, which had been removed from the supreme court of the state of New-York, to the said su preme court, with a mandate thereon requiring the 1818. Gelston supreme court of the state of New-York, to execute the judgment, which had been so rendered by it in favour of the defendant in error. And the said record having been so remitted, the court of errors of the state of Hoyt. New-York upon the coming of the said writ of error. from this court, made the following return thereto: "State of New-York, ss. The president of the senate, the senators, chancellor, and judges of the supreme court, in the court for the trial of impeachments and the correction of errors; certify and return to the supreme court of the United States, that before the coming of their writ of error, the transcript of the record in the cause, in the said writ of error mentioned, together with the judgment of this court thereon, and all things touching the same, were duly remitted in pursuance of the statute instituting this court, into the supreme court of judicature of this state,to the end that farther proceedings might be thereupon had, as well for execution as otherwise, as might be agreeable to law and justice; and in which supreme court of judicature, the said judgment, and all other proceedings in the said suit, now remain of record; and as the same are no longer before, or within the cognizance of this court, this court is unable to make any other or farther return to the said writ. All which is humbly submitted." Thereupon the counsel for the plaintiffs in error made an application to the supreme court of the state of New-York,to stay the proceedings upon said judgment, till an application could be made to this court in respect to the said writ of error. To avoid this delay, the counsel under the advice or suggestion of the judges of the said supreme court of VOL. III. 33 V. 1818. Gelston Hoyt. the state of New-York, entered into the following agreement, viz. "It is agreed, between the attorneys of the above named plaintiffs and defendant in error, that the annexed is a true copy of the record and bill of exceptions, returned by the supreme court of the state of New-York, to the court of errors of the said state, and remitted by the said court of errors, in the affirmance of the judgment of the said supreme court to the said supreme court. And that the said copy shall be considered by the said supreme court of the United States, as a true copy of the said record and bill of exceptions, and shall have the same effect as if annexed to the writ of error in the above cause from the said supre.ne court of the United States, and that the clerk of the supreme court of the state of New-York transmit the same, with this agreement to the clerk of the supreme court of the United States, and that the same be annexed by the said clerk of the supreme court of the United States, to the said writ of error, as a true copy of the said record and bill of exceptions." Record and Bill of Exceptions." City and County of New-York, ss. Be it remembered, that in the term of January, in the year of our Lord one thousand eight hundred and thirteen, came Goold Hoyt, by Charles Graham, his attorney, into the Supreme court of judicature of the people of the state of New York, before the justices of the people of the state of New York, of the supreme court of judicature of the same people, at the capitol, in the city of Albany, and impleaded David Gelston and Peter A. Schenck, in a certain plea of trespass, on which the said Goold Hoyt declared against the said David Gelston and Peter A. Schench in the words following: City and County of New-York, ss.: Goold Hoyt, plaintiff in this suit, complains of David Gelston and Peter A. Schenck, defendants in the suit, in custody, &c. For that, whereas, the said defendants, on the tenth day of July, in the year of our Lord one thousand eight hundred and ten, with force and arms, at the city of New-York, in the county of New-York, and at the first ward of the same city, the goods and chattels of the said plaintiff, of the value of two hundred thousand dollars, then and there found did take and carry away, and other injuries to the said plaintiff then and there did, to the great damage of the said plaintiff, and against the peace of the people of the State of New-York. And, also, for that the defendants, afterwards, to wit, on the same day and year last aforesaid, at the city and county, and ward aforesaid, with force and arms, to wit, with swords, staves, hands, and feet, other goods and chattels of the said plaintiff, to wit, a ship or vessel of the said plaintiff, called the Amèrican Eagle, together with her tackle, apparel, and furniture, five hundred tons of stone ballast, one hundred hogsheads of water, one hundred and thirty barrels salted provisions, twenty hogsheads of ship-bread, of the value of two hundred thousand dollars, at the place aforesaid found, did take and carry away, and other wrongs and injuries to the said plaintiff then and there did, to the great damage of the said plaintiff, and against the peace of the people of the state of New York: And also, for that the said. 1818. Gelsten V. Hovt. Declaratio 1818. Gelston V. Hoyt. defendants, afterwards, to wit, on the same day and year, and at the place aforesaid, the goods and chattels of the said plaintiff, to wit, a ship or vessel of the said plaintiff, called the American Eagle, together with her tackle, apparel, and furniture, five hundred tons stone ballast, one hundred hogsheads of water. one hundred and thirty barrels of salted provisions, and twenty hogsheads of ship-broad, of the value of two hundred thous and dollars, then and there being and found, seised, took, carried away, damaged, and spoiled, and converted and disposed thereof, to their own use, and other wrongs to the said plaintiff then and there did, to the great damage of the said plaintiff, and against the peace of the said people of the state of New-York: And, also, for that the said defendants, on the same day and year aforesaid, with force and arms, to wit, with swords, staves, hands, and feet, to wit, at the city, county, and ward aforesaid, seised and took a certain ship or vessel of the said plaintiff of great value, to wit, of the value of two hundred thousand dollars, and in which said ship or vessel the said plaintiff then and there intended, and was about to carry and convey certain goods and merchandises, for certain freight and reward, to be therefor paid to him the said plaintiff; and then and there carried away the said ship or vessel, and kept and detained the same from the said plaintiff, for a long space of time, to wit, hitherto, and converted and disposed thereof to their own use; and thereby the said plaintiff was hindered and prevented from carrying and conveying the said goods and merchandises as aforesaid, and thereby |