Evidence. Further Proof.-Commission to take Testimony. 110. In case of a supplementary libel being filed after closing the testimony in the original libel in prize causes, the new testimony taken must be applicable merely to the new allegation; but in other causes, this rule is much relaxed. Ibid. 109. In admiralty proceedings, a supplement- | privity of interest or consignment; and several ary libel, alleging new matters, and an answer claims should have been interposed by the sethereto, may be filed after appeal at the discre- veral owners, or by other persons authorized to tion of the court. Ibid. act for them in the premises; each intervening in his own name for his proprietary interest, and specifying it. If any owner should not appear to claim any particular parcel of the property, the habit of courts of admiralty is, to retain such property, or its proceeds, after deducting the salvage, until a claim is made, or a year and a day have elapsed from the time of the institution of the proceedings. And when separate claims are interposed, although the libel is joint against the whole property, each claim is treated as a distinct and independent proceeding, in the jus-nature of a several suit, upon which there may be a several independent hearing, decree and appeal. This is very familiar in practice in prize causes and seizures in rem for forfeitures, and is equally applicable to all other proceedings in rem, whenever there are distinct and independent claimants. Stratton v. Jarvis et al., 8 Peters, 4. 111. In admiralty causes of damage, the libel should state each distinct act of injury in a distinct article, with reasonable certainty of time and place. Treadwell v. Joseph, 1 Sumner's C. C. R. 390. 112. Where a defence is put in by way of tification, it must admit the facts. Ibid. 113. Where the act is relied on as a punishment, it must be pleaded. Ibid. 114. In cases where a justification is set up, the onus probandi is on the respondent. Ibid. 115. The admiralty has jurisdiction in cases of charter parties for foreign voyages, and may enforce the maritime lien for freight by a proceeding in rem under the charter party. The Schooner Volunteer, 1 Sumner's C. C. R. 551. 116. A clause in the charter party, that the parties bind the ship and goods, respectively, for the performance of the covenants, payments, and agreements thereof, is a valid clause, creating a pledge or lien on the goods for such performance; and may be enforced against the goods by a detention of the goods for the freight, and by a suit in the admiralty. Ibid. 117. Underwriters cannot make any claim for salvage in the admiralty, unless there has been an abandonment of the property to them, and it has been accepted by them. The Ship Henry Ewbank, 1 Sumner's Č. C. R. 400. 118. In salvage cases the proper course is, to make all the co-salvors parties to the original libel; and if they are omitted, they need not file a new libel where the property has been already taken possession of, and is in the custody of the court, under process. But they may bring forward their claims by a suitable allegation, and thus make themselves parties, without the formality of process, on notice to the other parties. Where different libels are filed by co-salvors unnecessarily, it is at the peril of paying the costs. Ibid. 119. A libel was filed in the district court of Maryland, for a salvage service performed by the libellant, the master and owner of the sloop Liberty, and by his crew, in saving certain goods and merchandises on board of the brig Spark, while aground on the bar at Thomas's Point, in the Chesapeake bay. The goods were owned by a number of persons, in several and distinct rights; and a general claim and answer were interposed in behalf of all of them, by Jarvis and Brown, (the owners of a part of them,) without naming who, in particular, the owners were, or distinguishing their separate proprietary interests. This proceeding was, doubtless, irregular in both respects. Jarvis and Brown had no authority, merely as co-shippers, to interpose any claim for other shippers with whom they had no 3. Evidence.-Further Proof.-Commission to take Testimony. 120. The ship's papers found on board of a captured vessel are prima facie evidence of the facts stated in them in questions of prize; and on this evidence prize courts generally condemn or acquit. Unless this evidence shows the propriety of the capture, there will be an acquittal, unless contrary evidence is given by the captors to rebut this presumption. Where this evidence establishes belligerent ownership, the captured must produce clear and certain contrary evidence. Miller et al. v. The Resolution, í Dall. Rep. 22. 121. Prize courts are necessarily watchful over the testimony of witnesses, and demand the utmost fairness in the conduct of the claimants. Yet they will distinguish between representations which may be ascribed to errors of judg ment, and which are as soon as possible corrected by the party who has made them, and wilful falsehoods which are detected by the testimony of others, or confessed by the party when detection becomes inevitable. The Nereide, 9 Cranch, 388; 3 Cond. Rep. 439. 122. Trivial and accidental inaccuracies in the testimony of a claimant who is examined as a witness on the standing interrogatories, which are afterwards corrected in his claim and test affidavit, will not work the condemnation of goods proved to be really neutral. Ibid. 123. The record of a court of admiralty, is evidence to prove the fact and the cause of condemnation; if, however, on the trial it was read without objection, it is evidence of facts so far as it exhibits documents which, if themselves produced, would be evidence in the cause. Russel v. Union Ins. Co., 4 Dall. 421. 124. If the court below deny an order for further proof when it ought to be granted, or allow it where it ought to be denied, and the objection is taken by the party and appears of record, the appellate court can administer the Evidence. Further Proof.-Commission to take Testimony. proper relief. The Pizarro, 2 Wheat. 227; 4 | the court from legal doubts as to his title, conCond. Rep. 103. demnation must pass to the captors. The San Jose Indiano, 1 Mason's C. C. R. 38. 125. But if evidence in the nature of further proof be introduced, and no formal order or objection appear on the record, it must be presumed to have been done by consent, and the irregularity is waived. Ibid. 126. A foreign sentence of condemnation is not conclusive evidence that the legal title to the property was not in a subject of a neutral nation. Maley v. Shattuck, 3 Cranch, 458; 1 Cond. Rep. 597. 127. Where an order for further proof is made, and the person disobeys or neglects to comply with its injunctions, courts of prize generally consider such disobedience or neglect as fatal to the claim. La Nereyda, 8 Wheat. 108; 5 Cond. Rep. 400. 128. Under such an order, it is almost invariably the practice for the claimant (beside other testimony) to make proof by his own oath of his proprietary interest, and to explain the other circumstances of the transaction; and the absence of such proof and explanation always leads to doubt. Ibid. 129. In cases of collusive capture, papers found on board one captured vessel may be invoked by the government into the case of another vessel captured on the same cruise. The Experiment, 8 Wheat. 261; 5 Cond. Rep. 433. 130. Where a captor has once been detected in a gross case of collusive capture, the admiralty will judicially notice the part in another case of capture on the same cruise, and under the same commission; and such a fact raises a presumption of ill faith in other transactions of the same parties, which can be removed only by clear evidence of honest conduct. Ibid. 131. No commission to take evidence in an enemy's country, is allowable in a prize court. Ibid. 137. It is a clear rule of public justice, enforced, for the most obvious reasons, by prize courts, that a party shall not be trusted with an order for further proof, who has already shown himself capable of abusing it. Ibid. 138. The rules of the common law, as to the competency or incompetency of witnesses, are adopted in the admiralty, in the exercise of its jurisdiction as an instance court. The Boston, 1 Sumner's C. C. R. 328. 139. The testimony of persons who are parties in a suit in the admiralty, ought to be taken under a special order of the court, showing the cause; that the court may, in its order, limit the inquiries to matters within the exception to the rule that the parties are not witnesses. Ibid. 140. A claim to a vessel and cargo, filed in an admiralty court, is not evidence. The law does not allow to such an affidavit the dignity of testimony. If it amounts to any thing, it is no more than "the exclusion of a counter lien." The Thomas and Henry, 1 Brockenb. C. C. R. 367. 141. Suppression of papers, when it appears to have been intentional and fraudulent, and attended with other suspicious circumstances, is good cause for refusing further proof; but where it appears to have been owing to accident or mistake only, further proof will be allowed. The St. Lawrence, 8 Cranch's Rep. 434; 3 Cond. Rep. 202. 142. Where the affidavits, produced on the order for further proof, are positive, but their credibility is impaired by the non-production of letters mentioned in the affidavits, a second order for further proof will be allowed in the appellate court. The Frances, 8 Cranch, 348; 3 Cond. Rep. 158. 143. Further proof, inconsistent with that already in the case, was refused. The Euphrates, 8 Cranch, 385; 3 Cond. Rep. 182. 132. If a neutral fraudulentiy attempt to aver and claim an enemy's interest in a prize court, he will not be permitted to introduce further proof to show his own neutral interest in the 144. Where one, a total stranger to the shipproperty. The Betsey and Cargo, 2 Gallis. C. C.ment, and a mere volunteer, procures an assign R. 377. 133. Where the captors have been guilty of irregularity in not bringing in the papers or the master of the captured vessel, further proof will be ordered. The London Packet, 1 Mason's C. C. R. 14. 134. The evidence to acquit or condemn must come, in the first instance, from the testimony of persons found on board the captured vessel, and the ship's papers. The Amiable Isabella, 6 Wheat. 1; 5 Cond. Rep. 1. 135. The captors cannot undertake to decide upon the materiality of papers; they are bound to bring in all the papers, and leave the court to decide upon their real character and consequence. If they conduct themselves in a different manner, it is at their peril. The London Packet, 1 Mason's C. C. R. 14. 136. A claimant, asserting rights and interests before a prize court, must make them out by competent and sufficient proofs; the onus probandi must rest on him; and if he fail to relieve ment from the parties in interest of the captured property, at his own risk and expense, it is a suspicious circumstance; the party is entitled to no favour in a court of prize, and the court will refuse him any opportunity to make further proof. Ibid. 145. A test affidavit ought to state that the property, at the time of the shipment, and also at the time of capture, did belong, and will, if restored, belong to the claimant; but an irregularity in this respect is not fatal. The Schooner Adeline, 9 Cranch, 244; 3 Cond. Rep. 397. 146. A test affidavit by an agent is not sufficient, if the principal is within the country, and within a reasonable distance from the court. But if test affidavits, liable to such objections, have been acquiesced in, in the courts below, by the parties, the objection will not prevail in the supreme court, when the case is there on appeal. _ Ibid. 147. Further proof will be allowed in the supreme court, where the national character and Evidence. Further Proof.-Commission to take Testimony. proprietary interest of goods recaptured, do not distinctly appear. Ibid. 148. Where the evidence is contrary or ambiguous, the court may order further proof, in a revenue or instance cause. Ibid. 149. If, upon the opening of a case, it appears to be one for further proof, it may be admitted, instanter; unless the court shall be of opinion that the other party, not prepared to produce it instanter, ought also to be allowed to produce further proof. The Venus, 1 Wheat. 112; 3 Cond. Rep. 508. 150. Concealment of papers is not sufficient evidence to authorize a condemnation of captured property. It will justify suspicion, but may be explained. It will authorize capture and sending in for adjudication; and the proprietary interest may still be proved. The Pizarro, 2 Wheat. | 227; 4 Cond. Rep. 103. 151. The court are not satisfied that, unless under very special circumstances, it would be a safe or convenient rule to allow parties who have had the benefit of plenary proof, to have an order for further proof on the same points, after the case has been carried to the supreme court. The Dos Hermanos, 2 Wheat. 76; 4 Cond. Rep. 39. 152. It is the practice of the supreme court, in prize causes, to hear the cause, in the first instance, on the evidence transmitted from the circuit court, and to decide, upon that evidence, whether further proof should be allowed. The London Packet, 2 Wheat. 371; 4 Cond. Rep. 162. 153. Affidavits to be used as further proof in causes of admiralty and maritime jurisdiction in the supreme court, must be taken under a commission. Ibid. 154. A deposition taken on further proof in one cause, cannot be invoked in another. The Experiment, 4 Wheat. 84; 4 Cond. Rep. 398. 155. The practice in prize courts is to confine the first hearing of the cause to the papers found on board the ship, and the preparatory examinations. If they acquit or condemn, in general, there is an end of the cause. If they present a case of doubt or difficulty, further proof is admissible; and this may either be by the common order for further proof, or the more solemn proceeding by plea and proof. The Ann Green, 1 Gallis. C. C. R. 274. 156. Doubts may sometimes arise from extrinsic facts presented by the claimants or the captors; and the discretion of the court is sometimes exercised in the admission or rejection of such facts: if the case, however, appear very satisfactory on the original evidence, they yield with great reluctance to extrinsic circumstances. Ibid. 157. In cases of further proof, the captors should be allowed their expenses. lbid. the option to accept or reject the whole invoice, in a limited time. Further proof allowed. The Frances ; Dunham and R.'s Claim, 8 Cranch, 354; 3 Cond. Rep. 164. 160. Further proof was ordered, when the question was the validity of the capture of the Grotius. One man only was put on board, the ship's papers, and the navigation of the vessel, being left to the master. The Grotius, 8 Cranch, 456; 3 Cond. Rep. 216. 161. Where the evidence is so contradictory and ambiguous as to render a decision difficult, the court will order further proof in a revenue or instance case. The Samuel, 1 Wheat. 9; 3 Cond. Rep. 466. 162. In a seizure revenue cause, a witness offered to be examined viva voce in the supreme court, was ordered to have his deposition taken out of court. The Samuel, 3 Wheat. 77; 4 Cond. Rep. 197. 163. It is a relaxation of the rules of the prize court to allow time for further proof, in a case where there has been concealment of material papers. The Fortuna, 3 Wheat. 236; 4 Cond. Rep. 244. 164. The captors are competent witnesses upon an order for further proof, where the benefit of it is extended to both parties. The Anne, 3 Wheat. 435; 4 Cond. Rep. 286. 165. The captors are always competent witnesses as to the circumstances of the capture, whether it be joint, collusive, or within neutral territory. Ibid. 166. The entry in the log-book, in a case of admiralty jurisdiction, is not evidence of any fact but that which it is made to establish by act of congress. Jones v. The Phanix, 1 Adm. Decis. 201. 167. Although the act of congress directs an entry to be made in the log-book of the absence of a mariner; yet if such entry is imperfect, the defect may be supplied by other evidence, and the forfeiture decreed. Herron v. The Peggy, Bee's D. C. R. 57. 168. The shipping articles for the voyage are always admitted, in the admiralty, as evidence of the terms of hire, even of the master or his apprentice; but they are not conclusive. Williams v. Dorr, 3 Mason's C. C. R. 161. 169. An attested copy of a bottomry bond, executed in a foreign country, was produced by the libellant, and on his application the court allowed a continuance to enable him to produce the original. The Jerusalem, 2 Gallis. C. C. R. 91. 170. Where, after capture, the vessel has been recaptured by the enemy, and proceeded against in a court of prize, the court will not suffer a part of the papers from the prize court to be read, to show there was no original cause of capture, unless the whole papers are produced. The Rover, 2 Gallis. C. C. R. 240. 158. Goods appearing by the ship's papers to be a consignment from alien enemies to American merchants, were condemned in toto, as prize, although further proof was offered that American 171. In causes on the instance side of the admerchants were interested. On this point fur-miralty, the answer of the claimant should be ther proof was refused. The Frances; Thompson's Claim, 8 Cranch, 335; 3 Cond. Rep. 154. 159. Goods were shipped by a British house to an American house, partly in conformity with orders, and partly without, the consignee having verified by oath; and in a suit for wages, the libellant may compel the adverse party to answer special interrogatories. Gammell v. Skinner, 2 Gallis. C. C. R. 45. 172. An obstinate suppression of the ship's Decree.-Condemnation. papers, coupled with a voyage from an enemy's dulgences are given to one, though not to the country, is sufficient cause of condemnation. 1 rest, a seaman may be a witness. The Ship Gallis. C. C. R. 467. Philadelphia, 1 Adm. Decis. 211. 173. The property subjected to prize jurisdic tion, is itself, in the first instance, a part of the necessary evidence in the cause, upon which the acquittal or condemnation must go; and the court will, upon laying a proper foundation, direct a survey, in order to ascertain its nature and character. The Ship Liverpool Packet, 1 Gallis. C. C. R. 513. 174. The allowance of further proof, is an indulgence granted to honest mistake, and unintentional error. Ibid. 518. 175. By the act of congress, the log-book entry is made evidence of the time of a seaman's entry on board a vessel for which he has shipped. The Mary, 1 Adm. Decis. 140. 176. In a prize court, the onus probandi lies on the claimant. He must make out a good and sufficient title, before he can call upon the captors to show any ground for the capture. If, therefore, the claimant make no title, or trace it only by illegal transactions, his claim must be rejected, and the court left to dispose of the cause as the other parties may establish their rights. The Cargo of the Emulous, 1 Gallis. C. C. R. 571. 177. If, upon a ship's papers, it be doubtful whether the property captured as prize belong to an enemy, it is not usual to proceed immediately to condemnation, although no claim be interposed. But if, in such case, no claim be interposed within a year and a day, condemnation is of course to the captors. The Avery, 2 Gallis. C. C. R. 386. 178. The rule in the admiralty is not that the answer to the libel is to be taken as true, until disproved. The U. S. v. The Matilda, 4 Hall's Law Journal, 478. 179. One seaman may be a witness for another in any suit respecting the same voyage, although interested in the question, if not interested in the event of the suit. Sparr v. Pierson, 1 Mason's C. C. R. 104. 180. Salvors are, ex necessitate, admitted as witnesses to all the facts which are deemed peculiarly or exclusively within their knowledge. To other facts, they are incompetent witnesses. The Ship Henry Ewbank, 1 Sumner's C. C. R. 400. 181. The circuit court will issue letters roga. tory, for the purpose of obtaining testimony, when the government of the place where the evidence is to be obtained, will not permit a commission to be executed. Nelson et al. v. The U. S. 1 Peters' C. C. R. 235. 182. One seaman cannot be admitted a witness for another, if the witness and the party have a common interest in the point in contest. If the question be the loss of the ship, embezzlement equally affecting the whole crew, negligence, misfeasance, or malfeasance, to which all must contribute in damages, one of the crew cannot be a witness for another. But when special circumstances distinguish cases, where one, having made a similar contract with another, the breach of performance whereof may happen without affecting the other; where special in 4. Decree.-Condemnation. 183. Whoever claims under a sentence of condemnation in a court of the captor, or his ally, the captured property having been carried infra præsidia, must show that he is a bona fide purchaser for a valuable consideration, unaffected with any participation of American neutrality, by the captors. La Nereyda, 8 Wheat. 108; 5 Cond. Rep. 400. 184. Whoever sets up such a condemnation, is bound to produce the libel or other equivalent proceeding, under which the condemnation was pronounced, as well as the sentence of condemnation. Ibid. 185. A decree of acquittal, on a proceeding in rem, without a certificate of probable cause of seizure, and not appealed from with success, is conclusive in every inquiry before every other court, that there was no justifiable cause of seizure. The Apollon, 9 Wheat. 362; 5 Cond. Rep. 612. 186. If the claimant does not show a good title to the property, it will not be restored to him, although not condemned as forfeited; but it will be retained in the registry until the real owner appears and proves title. The Eliza, 2 Gallis. C. C. R. 4. 187. In admiralty cases a decree is not final, while an appeal from the same is depending in the supreme court, and any statute which governs the case must be an existing valid statute at the time of affirming the decree below. The United States v. Preston, 3 Peters, 57. 188. If the law under which the sentence of condemnation was pronounced, be repealed after the sentence of the court below, and before final sentence in the appellate court, no sentence of condemnation can be pronounced, unless some special provision be made for that purpose by statute. Yeaton et al. v. The United States, 5 Cranch, 281; 2 Cond. Rep. 256. 189. A sale of captured property, by authority of the captors, before sentence of condemnation, if the property be afterwards condemned, is valid. Williams v. Armroyd, 7 Cranch, 423'; 2 Cond. Rep. 556. 190. The decree must be secundum allegata, as well as secundum probata. The Hoppet v. The United States, 7 Cranch, 389; 2 Cond. Rep. 542. 191. After a general decree of restitution in the supreme court, new claims for charges and liens cannot be set up in the court below. Every claim which the party has omitted to make at the hearing upon the merits, and before the final decree, is to be considered as waived by him, and is not to be entertained in any future proceeding. The Santissima Trinidad, 7 Wheat. 283; 5 Cond. Rep. 284. 192. Nor can the claimants or original owners, in such a case, set up a claim for interest upon the stipulation taken in the usual form, for the appraised value of the goods; interest not being mentioned in the stipulation itself. Ibid. 5. Appeal. Appeal. 193. Courts of appeal, in cases of admiralty and maritime jurisdiction, may, having all the matter in controversy before them, make such a decree as the inferior court from which the case was removed should have given. Penhallow v. Doane, 3 Dall. 54; 1 Cond. Rep. 21. 194. When an appeal is entered, from part of a decree of an inferior court, the rights of a party in the inferior court, not affected by the part appealed from, will not be noticed in the court above. M'Donough v. Danery, 3 Dall. 188; 1 Cond. Rep. 94. 195. An appeal from the decree of a court of admiralty, suspends the effect of the decree from which the appeal is taken. Penhallow v. Doane's Adm'r. 3 Dall. 54; 1 Cond. Rep. 21. Yeaton v. The United States, 5 Cranch, 281; 2 Cond. Rep. 256. 196. In all proceedings in rem, on an appeal, the property follows the cause into the circuit court, and is subject to the disposition of that court. But it does not follow the cause on an appeal to the supreme court of the U. S. The Collector, 6 Wheat. 194; 5 Cond. Rep. 62. 197. The circuit court has authority to allow amendments in revenue cases, or proceedings in rem, brought by appeal from the district court. Anonymous, 1 Gallis. C. C. R. 25. 198. Upon an appeal in an admiralty case, it is allowable, under certain restrictions, to allege what has not been alleged, and to prove what has not been before proved; and this right seems the natural result from the introduction of new evidence on the appeal. Ibid. 199. By an appeal the judgment in the court below is suspended. The whole cause is heard in the court appealed to anew, as to law and fact; and in this particular it seems a cause, de novo, in court. Ibid. 200. Where after capture the vessel has been recaptured by the enemy, and proceeded against in a court of prize, the court will not suffer a part of the papers from such court to be read, unless the whole of the papers are produced. Ibid. 201. Since the act of March, 1803, ch. 93, (2 Story's Laws U. S. 905,) in admiralty as well as equity cases, carried up to the supreme court by appeal, all the evidence goes with the cause, and it must accordingly be in writing. Ibid. 1 Sumner's C. C. R. 328. 202. On an appeal to the supreme court in an admiralty case, the cause is before that court as in the inferior court. The Venus, 1 Wheat. 112; 3 Cond. Rep. 508. 203. Where it is discretionary in the court to admit an appeal, it will be refused; although the captors were irregular in not producing the master, and certain documents before the court; if it appears substantial justice was done, and their production would not have varied the decision. The Chester v. The Experiment, 2 Dall. 41. 204. The thing does not follow the appeal into the superior court, but remains in the court below, which has a right to order it to be sold, if perishable, notwithstanding the appeal. Jennings v. Carson, 4 Cranch, 2; 2 Cond. Rep. 2. 205. After an admiralty cause had come on to be heard, on an appeal to the supreme court, it appeared that a final decree had not been entered by the clerk, on which the appeal was dismissed. It afterwards appeared that by a mistake of the clerk of the circuit court of South Carolina, the entry of the decree had been omitted. The court reinstated the appeal. The Palmyra, 12 Wheat. 1; 6 Cond. Rep. 397. 206. In admiralty causes and others, where the district court of the district of Maine, acts as a district court, an appeal lies to the circuit court for the district of Massachusetts, and not directly to the supreme court. Sloop Sally v. United States, 5 Cranch, 372; 2 Cond. Rep. 281. 207. Under the judiciary act of Sept. 24th, 1789, ch. 20, 1 Story's Laws, 53, and the act of March 3d, 1803, ch. 353, 2 Story's Laws, 905, causes of admiralty and maritime jurisdiction, or in equity, cannot be carried from the circuit to the supreme court by writ of error; but the proper mode of removing such causes is by appeal. The San Pedro, 2 Wheat. 132; 4 Cond. Rep. 65. 208. The appropriate mode of removing admiralty causes to a higher court is by appeal; and the rules, regulations, and restrictions, contained in the 22d and 23d sections of the judiciary act, respecting the time within which a writ of error shall be brought, and in what instances it shall operate as a supersedeas, the citation to the opposite party, the security to be given by the plaintiff in error, and the restrictions upon the appellate court as to reversals in certain enumerated cases, are applicable to appeals under the act of 1803, and are substantially observed, except that, where the appeal is prayed at the same term when the decree or sentence is pronounced, a citation is not necessary. Ibid. 209. An appeal under the judiciary acts of 1789 and 1803 was prayed for, and allowed within five years, held to be valid, although the security was not given within the five years. The mode of taking the security and the time of perfecting it, are exclusively within the discretion of the court below. The Dos Hermanos, 10 Wheat. 306; 6 Cond. Rep. 109. 210. Upon an appeal from a mandate to carry into effect a former decree of the supreme court, nothing is before the court but the proceedings subsequent to the mandate. The Santa Maria, 10 Wheat. 431; 6 Cond. Rep. 176. 211. But the original proceedings are always before the court, so far as they are necessary to determine any new points or rights in controversy between the parties, which were not terminated by the original decree. Ibid. 212. No appeal lies from a decree of restitution with costs and damages, until the report of the commissioners appointed to ascertain the damages, has been acted upon by the court; until that be done the decree is not final. Palmyra, 10 Wheat. 501; 6 Cond. Rep. 200. The 213. No appeal lies from the district to the circuit court in any causes, except civil causes |