THE PROTECTOR, 78 U. S. 82 (1870)

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U.S. Supreme Court

The Protector, 78 U.S. 11 Wall. 82 82 (1870)

The Protector

78 U.S. (11 Wall.) 82


An appeal dismissed because taken in the name of William A. Freeborn & Co., the court holding that no difference existed between writs of error and appeals as to the manner in which the names of the parties should be set forth.

By the 22d section of the Judiciary Act it is enacted that decrees in civil actions may be brought here by writ of error. By the 32d section of the act it is enacted:

"That no summons, writ, declaration, return, process, judgment, or other proceeding in civil causes in any of the courts of the United States, shall be abated, arrested, quashed, or reversed, for any defect or want of form, but the said courts respectively shall proceed and give judgment according as the right of the cause and matter in law shall appear unto them, without regarding any imperfections, defects, or want of form in such writ, declaration, or other pleadings, return, process, judgment, or course of proceeding whatsoever, except those only in cases of demurrer which the party demurring shall specially set down. . . . And the said courts respectively shall and may . . . from time to time amend all and every such imperfection, defect, and want of form, except &c., and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as the said courts respectively shall in their discretion and by their rules prescribe."

An Act of March 3, 1803, enacts that decrees in admiralty must, if brought here, be brought by appeal, and enacts:

"Such appeals shall be subject to the same rules, regulations, and restrictions, as are presented in law in cases of writs of error, and that the said Supreme Court shall be and hereby is authorized and required to receive, hear, and determine such appeals."

In this state of statutory law William A. Freeborn, James F. Freeborn, and Henry P. Gardner, of the city of New

Page 78 U. S. 83

York, merchants, filed a libel in the District Court for the Southern District of Alabama against the ship Protector. That court dismissed the libel "at the costs of the libellants, and ordered execution therefor to issue against the libellants." This decree was confirmed by the circuit court. An appeal was then taken to this Court. The petition for appeal was entitled William A. Freeborn & Co., and prayed for an appeal in the name of William A. Freeborn & Co. The allowance of the appeal was in the same name and style. The bond recited the appeal in the name of William A. Freeborn & Company. The citation also directed the party to appear in the cause wherein William A. Freeborn & Company were appellants.

Who constituted the Co. or Company, nowhere appeared in the proceedings on appeal.

Page 78 U. S. 86

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