The Rio Grande

Mr. Justice HUNT delivered the opinion of the court. The appellants insist that at the time the libellants took their appeal from the decree of the District Court of Alabama, the vessel proceeded against in rem was not in the actual or constructive possession of the District or Circuit Court, but that she had been previously restored to the *463 claimants by virtue of an order of the District Court, under which the marshal could justify. But the appeal which was allowed by that court on the 11th of May, operated as a stay of all proceedings upon or under the judgment of dismissal of the libels made on that same day, and but a few minutes before. The appeal was well allowed, the bonds are in compliance with the order of the court so far as it appears, were accepted by the clerk, and were not objected to by the parties. We cannot agree with the argument of the claimant that under such circumstances the Circuit Court in Alabama had no jurisdiction of the appeal, and that its decree was void. The appeal stayed all proceedings, and the parties were bound to keep the vessel where it then was, to wit, in the possession of the court. The appeal was taken and allowed before any order of discharge was granted, and the bonds required to make the appeal a stay of proceedings were given within the time required by the statute. The removal of the vessel pending an appeal to the Circuit Court was illegal, in violation of the express directions of the statute regulating appeals. We do not understand the law to be that an actual and continuous possession of the res is required to sustain the jurisdiction of the court. When the vessel was seized by the order of the court and brought within its control the jurisdiction was complete. A subsequent improper removal cannot defeat such jurisdiction. The present claimants are not bona fide purchasers, setting up new interests. They are purchasers only of such interest as passed under the claims of Mrs. Price and Mr. Williams. This was the very title set up, litigated, and decided in the Alabama suit. It cannot again be interposed and litigated a second time, as a defence to that decree. In Cooper v. Reynolds, * the court say: “Jurisdiction of the res is obtained by a seizure under process of the court, whereby it is held to abide such order as the court may *464 make concerning it. The power to render the decree or judgment which the court may undertake to make in the particular ease depends upon the nature and extent of the authority vested in it by law in regard to the subject-matter of the cause.” In the case of The Brig Ann * Chief Justice Marshall says: “Tn order to constitute and perfect proceedings in rem it is necessary that the thing should be actually or constructively within the reach of the court. It is actually within its possession when it is submitted to the process of the court; it is constructively so when by a seizure it is held to ascertain and enforce a right or forfeiture which can alone be decided by a judicial decree in rem. . . . Before judicial cognizance can attach upon a forfeiture in rem under the statute there must be a seizure, for until seizure it is impossible to ascertain what is the competent forum. And if so, it must be a good subsisting seizure at the time when the libel or information is filed or allowed. If a seizure be completely and explicitly abandoned and the property restored by the voluntary act of the party who has made the seizure, all rights under it are gone. It is not meant to assert that a tortious ouster of possession, a fraudulent rescue or relinquishment of her seizure will divest jurisdiction; The case put is that of a voluntary abandonment and release of the property seized, the legal effect of which must be, we think, to purge away all the prior rights acquired by the seizure.” In Taylor v. Garryl, † the rule is thus laid down : “ In admiralty all parties who have au interest in the subject of the suit, the res, may appear, and each may propound independently his interest. The seizure of the res and the publication of the monition or invitation to appear is regarded as equivalent to the particular service of process in law and equity. But the res is in no other sense than this the representative of the whole world. But it follows that to give jurisdiction in rem there must have been a valid seizure and an actual control of the ship by the marshal of the court; *465 and the authorities are to this effect. * †‡In the present instance the service was typical. There was no exclusive custody or control of the bark by the marshal from the 21st day of January, 1848, to the day of sale, and when the order of sale was made in the District Court she was in the actual and legal custody of the sheriff.” We hold the rule to be that a valid seizure and actual control of the res by the marshal gives jurisdiction of the subject-matter, and that an accidental or fraudulent or improper removal of it from his custody, or a delivery to the party upon security, does not destroy jurisdiction. † In the present case the order for restoration was in direct violation of the statute regarding appeals, and did not operate to destroy the jurisdiction of the Circuit Court. That court was authorized to proceed as if no such order had been made. It is further insisted by the appellants that the Circuit Court in Alabama had no authority to render its decree, for the reason that the subject-matter, to wit, materials and repairs to a vessel in a domestic port, gives no ground of jurisdiction. There are several answers to this suggestion: 1. We do not know that the facts are as alleged in the objection. Supplies were furnished and repairs were made, but whether the vessel was an American or a foreign vessel we have no means of determining. The report of the master makes reference to various matters which would authorize a determination either way, but the testimony itself is not given. Until a short time before the furnishing the materials the vessel had been a Mexican vessel, and the claimant had repeatedly stated that she was a foreign vessel, but how the fact was we have no legal means of determining. 2. Whether the vessel was foreign or domestic was one of the questions presented to the Circuit Court and passed upon by it, and conclusively. ‡ 3. If there was error in the decision on this point it was *466 error only, and not an excess of jurisdiction. The vessel was in possession of the court when the suit was commenced. It was the duty of the court to decide whether the proceeding should be in rem or in personam, and until reversed its decree on this question is conclusive. The judgment and decree of the Circuit Court in Alabama, that the vessel was subject to the lien of the libellants’ claim, remaining in full force, was conclusive of the right of such claim when alleged in the District of Louisiana. The judgment of the Circuit Court to that effect was right, and must be Affirmed. Footnotes [*] 10 Wallace, 317. [*] 9 Cranch, 290-1. [†] 20 Howard, 599. [*] Jennings v. Carson, 4 Cranch, 2; 2 Ware’s Admiralty, 362. [†] Jennings v. Carson, 4 Craneh, 23. [‡] Hudson v. Guestier, 6 Crunch, 284.