The Marianna Flora

Mr. Justice Story delivered the opinion of the *38 , . Amendment byB addf d'nss new count fire libel.

Court, and after stating the pleadings, proceeded follows:

An objection, which is preliminary in its nature, has been taken to the admissibility of this new count to the libel, filed in the Circuit Court, upon the ground, that the original subiect matte r was exclusively cognizable m the District Court; and to allow this amendment would be to institute an original, and not an appellate inquiry in the Circuit Court. But the objection itself is founded on a mistaken view of the rights and authorities of appellate Courts of admiralty. It is the common usage, and admitted doctrine of such Courts, to permit the parties, upon the appeal, to introduce new allegations-, and new proofs, non allegata allegare, et non probata probare.

The Courts of the United States, in the exercise of appellate jurisdiction in admiralty causes, are, by law, authorized to proceed according to the course of proceedings in Admiralty Courts. It has been the constant habit of the Circuit Courts, to allow amendments of this nature in cases where public justice, and the substantial merits, required them ; and this practice has not only been incidentally sanctioned in this Court; but on various occasions in the exercise of its own final appellate jurisdiction, it has remanded causes to the Circuit Court, with directions to allow new counts to be filed. We may, then, dismiss any farther discussion of this objection, and proceed to the main questions in, controversy. [Here the learned judge recapitu *39 lated the facts of the case as they have been before stated.]

In considering the circumstances, the Court has no difficulty in deciding, that this is not a case of a piratical aggression, in the sense of the act of Congress. The Portuguese ship, though armed, was so. for a purely defensive mercantile purpose. She was bound homewards with a valuable cargo on board, and could have no motive to engage in any piratical act or enterprise. It is true, that she made a meditated, and, in a sense, a hostile attack, upon the Alligator, with the avowed intention of repelling her approach, or of crippling or destroying her. But, there is no reason to doubt, that ,this attack was not made with a piratical or felonious intent, or for the purpose of wanton plunder, or malicious destruction of property. It was done upon a mistake of the facts, under the notion of just self-defence, against what the master very imprudently deemed a piratical cruizer. The combat was, therefore, a combat on mutual misapprehension; and it ended without any of those calamitous consequences to life which might have brought very painful considerations before the Court.

Not a case of piratical aggression unber the act of Congress.

It has, indeed, been argued at the bar, that even if this attack had been a piratical aggression, it would not have justified the capture and sending in of the ship for adjudication, because foreign ships are not to be governed by our municipal regulations. But the act of Congress is decisive on this subject. It not only authorizes a. capture, but a condemnation in our Courts, for *40 such aggressions; and whatever may be the resPonsikility incurred by the nation to foreign powers, in executing such laws, there can be no doubt that Courts of justice are bound to obey and administer them.

*39 The act extend to ƒ reign vessels.

*40 Not a case of hostile aggression for which the property taken in delicato is subject to conficasion by the law of nations.

The other, count, which seeks condemnation on the ground of an asserted hostile aggression, of a similar answer. It proceeds upon the principle, that, for gross violations of the of nations on the high seas, the penalty of confiscation maybe properly inflicted upon the offending property. Supposing the general rule to be so in ordinary cases of property taken in delicto, it is not, therefore, to be admitted, that every offence, however small, however done under a mistake of rights, or for purposes wholly defensive, is to be visited with such harsh punishments. Whatever ‘may be the case, where a gross, fraudulent, and unprovoked attack, is made by one vessel upon another upon the sea, which is attended with grievous loss or injury, such effects are not to be attributed to lighter faults, or common negligence. It may be just, in. such cases, to award to the injured party full compensation for his actual loss and damage ; but the infliction of any forfeiture beyond this does not seem to be pressed by any considerations derived from public law.

Pirates may, without doubt, be lawfully captured on the ocean by the public or private ships of every nation; for they are, in truth, the common enemies of all mankind, and, as such, are liable to the extreme rights of war. And apira-.

*41 tical aggression by an armed vessel sailing under the regular flag of any nation, may be justly subjected to the penalty of confiscation for such a gross breach of the law of nations. But every hostile attack, in a time of peace, is not necessarily piratical. It maybe by mistake, or in necessary self-defence, or to repel a supposed meditated attack by pirates.. It may be justifiable, and then no blame attaches to the áct; or, it may be without just excuse, and then it carries responsibility in damages. If it proceed farther, if it be an attack from revenge and malignity, from gross abuse of power, and a settled purpose of mischief, it then, assumes the character of a private unauthorized war, and may be punished by all the penalties which the law of nations can properly administer.

These latter ingredients aré entirely wanting in the case before us ; and, therefore, if the question of forfeiture were now in judgment, we should have no doubt, either upon the act of Congress, or the general law, that it ought not to be enforced.

But, in the present posture of this cause, the libellants are no longer plaintiffs. The claimants interpose for damages in their turn, and have assumed the character of actors. They contend that they are entitled to damages, first, because the conduct of Lieutenant Stockton, in the approach and seizuré of the’Marianna Flora, was unjustifiable ; and, secondly, because, at all events, the subsequent sending her in for adjudication was without any reasonable cause, *42 Rights and duties of armed and other ship, navigating the ocean in time of peace.

In considering these points, it is necessary to ascertain what are the rights and duties of anued, and other ships, navigating the ocean in time of peace. It is admitted, that the right , of visitaan6 search does not, under such circumstances, belong to the public ships of any nation. This right is strictly a bellige.rant right, allowed by the general consent of nations, in time, of war, and limited to those occasions. It is true, that it has been held in the Courts of this country, that American ships, offending against our laws, and foreign ships, in like manner, offending within our jurisdiction, may, afterwards, be pursued and seized upon the ocean, and rightfully brought into oitr ports for adjudication. This, however, has never been supposed to draw after it any right of visitation or search. The party, in such case, seizes at his peril. If he establishes the forfeiture, he is justified. If he fails, he must make full compensation in damages.

Upon the ocean, then, in time of peace, all possess an entire equality. It is the common highway of all, appropriated to the use of all; and no one can vindicate to himself a superior or exclusive prerogative there. Every ship sails there with the unquestionable right of pursuing her own lawful business without interruption; but, whatever may be that business, she is bound to pursue it in such a mánner as not to violate the rights of others. The general maxim in such cases is, sic utere tuo, ut non alienum latdas.

If has been argued, that’no ship has a right to *43 approach another at sea; and that every ship has a right to draw round her a line of jurisdiction, within which no other is at liberty to intrude, In short, that she may appropriate so much of the ocean as she may deem necessary for her protection, and prevent any nearer approach.

This doctrine appears to us novel, and is not supported by any authority. It goes to establish upon the ocean.a territorial jurisdiction, like that which is claimed by all nations within cannon shot of their shores, in virtue of tlieir general sovereignty. But the latter right is founded upon the principle . of sovereign and permanent appropriation, and has never been successfully asserted beyond it. Every vessel undoubtedly has a right to the use of so much of the ocean as she occupies, and as is essential to her own movements. Beyond this, no exclusive right has ever yet been recognised, and we see no reason for admitting its existence. Merchant ships are in the constant habit of approaching each other on the ocean, either to relieve their own distress, to proe ire information, or to ascertain the character of strangers; and, hitherto, there has never been supposed in such conduct any breach of the customary observances, or of tiie strictest principles of the law of nations. In respect to ships of war sailing, as in the present case, under the authority of their government, to arrest pirates, and other public offenders, there is no reason why they may not approach any vessels descried at sea, for the purpose of .ascertaining their real characters. Such a right seems *44 indispensable for the fair and discreet exercise of thier authority; and the use of it cannot be justly deemed indicative of any design to insult or injure those they approach, or to impede them in their lawful" commerce. On the other hand, it is as clear, that no ship is, under such circumstances, bound to lie by, or wait the approach of any other ship. She is at full liberty to pursue her voyage in her own way, and to use all necessary precautions to avoid any suspected sinister enterprise or hostile attack. She has a right to consult her own safety; but, at the same time, .she must take care not to violate the rights of others. She may use any precautions dictated by the prudence or fears of her officers; either as to delay, or the progress or course of her voy- . age ; but she is not at liberty to inflict injuries upon other innocent parties, simply because of conjectural dangers. These principles seem to us the natural result of the common duties and rights of nations navigating the ocean in time of peace. Such a state of things carries with it very different obligations and responsibilities from those which belong to public war, and is not tobe confounded with it.

whether the conduct of the captor was in subduing and seizing the vessel.

The first inquiry, then, is, whether the conduct of Lieutenant Stockton was, under all. the circumstances preceding and attending the combat, justifiabl/5. There is no pretence to say that he committed the first aggression^ • That, beyond all question, was on the part of the Marianna Flora*; and her firing was persisted in after the Alligator had’ hoisted her ' national flag, and, of *45 course, held out a signal of her real pacific character. What, then, is the excuse for this hostile attack? Was it occasioned by any default or misconduct on the part of. the Alligator ? It is said, that the Alligator had no right to approach the Marianna. Flora, and that the mere fact of approach authorized the attack. This is what the Court feels itself bound to deny. Lieutenant Stockton, with a view to the objects of his cruize,, had just as unquestionable a right to use the ocean, as the Portuguese ship had ; arid his right of approach was just as perfect as her right of flight. But, in point of fact, Lieutenant Stockton’s approach was not from mere motives of public service, but was occasioned by the acts of the Marianna Flora. He was steering on a course which must, in a short time, have carried him far away from her. She lay to, and showed a signal ordinarily indicative of distress. It was so understood, and, from motives of humanity, the course was changed, in order to afford the necessary relief. There is not a pretence in the whole evidence, that the lying to was not voluntary, and was not an invitation of some sort. The whole reasoning on the part of the claimants is, that it was for the purpose of meeting a supposed enemy by day light, and, in this way, to. avoid the difficulties, of an engagement in the night But how was this to be known on board of the Alligator ? How was it to be known that she was a Portuguese ship, or that she took the Alligator for a pirate, or that her object in laying to was a defensive operation ? When the vessels *46 were within reach of each other, the first salutation from the ship was a shot fired ahead, and, at the same time, no national flag appeared at the mast-head. The ship was armed, appeared full of men, and, from her manoeuvres, almost necessarily led to the supposition, that her previous conduct was a decoy, and that she was either a piratical vessel, or, at least, in possession of pirates. Under such circumstances, with hostilities already proclaimed, Lieutenant Stockton was certainly not bound to retreat; and, upon his advance, other guns, loaded with shot, were fired, for the express purpose of destruction. It was, then, a case of open, meditated hos.ility, and this, too, without any national flag displayed by the Portuguese ship, which might tend to correct the error, for she never hoisted her flag until the surrender. What, then, was Lieutenant Stockton’s duty ? In our view it was plain , it was to oppose force to force, to attack and to subdue the vessel thus prosecuting unauthorized warfare upon his schooner and crew. In taking, therefore, the readiest means to accomplish the object, he acted, in our opinion, with entire legal propriety. He- was not bound to fly, or to wait until he was crippled. His was not a case of mere remote danger, but of imminent, pressing, and present danger. He had the flag of his country to maintain, and the rights of his cruizer to vindicate. To have hesitated in what his duty to his government called for on such an occasion, would have been to betray (what no honourable *47 officer could be supposed to indulge) an indifference to its dignity and sovereignty.

But, it is argued, that Lieutenant Stockton was bound to have affirmed his national flag by an appropriate gun; that this is a customary observance at sea, and is universally understood as indispensable to prevent mistakes and misadventures ; and that the omission, was such a default on his part, as places him in delicto as to all the subsequent transactions. This imputation certainly comes with no extraordinary grace from the party by whom it is now asserted. If such an observance be usual and necessary, why was it not complied with on the part of the Marianna Flora ? Her commander asserts, that by the laws of his own country, as well as those of France and Spain, this is a known and positive obligation on all armed vessels, which they are not at liberty to disregard. Upon what ground, then, can he claim an exemption from performing it ? Upon what ground can he set up as a default in another, that which he has wholly omitted to do on his own part? His own duty was clear, and pointed out; and yet he makes that a matter of complaint against the other side, which was confessedly a primary default in himself. He not only did not hoist or affirm his flag in the first instance, but repeatedly fired at his adversary with hostile intentions, without exhibiting, his own national character at all. He left, therefore, according to his own view of the law, his own duty unperformed, and fortified, as . against himself, the very inference, that his ship *48 might properly be deemed, under such circumstances, a piratical cruizer.

But, we are not disposed to admit, that there exists any such universal rule or obligation of an affirming gun, as has been suggested at the bar. It may be the law of the maritime states of the European continent already alluded to, founded in their own usages or positive regulations. But, it does not hence follow, that it is binding upon all other nations. It was admitted, at the argument, that the English practice is otherwise; and, surely, as a maritime power, England deserves to be listened to with as much respect, on such a point, as any Other nation.. It was justly inferred, that the practice of America is conformable to that of England; and the-.absence of any counter proof on the record, is almost of itself decisive. Such, however, as the practice is, even among the continental nations of Europe, it is a practice adopted with reference to a state of war, rather than peace. It may be a useful precaution to prevent conflicts between neutrals, and allies, and belligerents, and even between armed ships of the same nation. But the very necessity of the precaution in time of war arises from circumstances, which do not ordinarily occur in time of general peace. Assuming, therefore, that the. ceremony might be salutary and proper in periods of war, and suitable to its exigencies,' it by no means follows, that it is justly to be insisted on at the peril of costs and damages in peace. In any view, therefore, we do not think this omission can avail the claimants.

How far the tice ofraffirm-with a'guii|a¡s iaw ofna^o'ns6 *49 Again; it is argued, that there is a general ^obligation upon armed ships, in exercising the right of visitation and search, to keep at a dis'_ tance, out of cannon shot, and to demean themselves in such a manner as not to endanger neutrals. And this objection,itis added, hasbeen specially provided for, and enforced by . the stipulations tions of many of our own treaties with foreign pow-era. It might be a decisive answer to this argu ment, that, here, no right of visitation and search was attempted to be exercised. lieutenant Stockton did not claim to be a belligerant, entitled to search neutrals on the ocean. His commission was for other objects. He did not approach or subdue the Marianna Flora, in order to compel her to submit to his search, but with other motives. He took possession of her, not because she resisted the right of search, but because she attacked him in a hostile manner, without any reasonable cause or provocation.

How far the conventional alaw, in respect to the manner of exercising the right of visitaion and search is applicable to case.

Doubtless,, the obligation of treaties is to be observed with entire good faith, and scrupulous care. But, stipulations in treaties having sole reference to the exercise of the rights of belligerants in time of war, cannot, upon any reasonable principles of construction, be applied to govern cases exclusively of another nature, and belonging to a state of peace. Another considera-, tion, quite sufficient to establish that such stipulations cannot be applied in aid of the present case, is, that whatever may be our duties to other nations, we have no such treaty subsisting with *50 Portugal. It will scarcely be pretended, that wé are bound to Portugal by stipulations to which she is no party, and by which she incurs no correspondent obligation.

Upon the whole, we are of opinion, that thc conduct of Lieutenant Stockton, in approaching, and, ultimately, in subduing the Marianna Flora, was entirely justifiable. The first wrong was done by her, and his own subsequent acts were a just defence and vindication of the rights and honour of his. country.

Whether the acst of sending in for adjudication subjected the captor cost and damages.

The next inquiry is, whether the act of send-. in the Marianna Flora for adjudication, was, ° ' under all the circumstances, unjustifiable, so as . . ...... , to carry with it responsibility in damages.

It is argued, that, upon examination of the ship’s papers, the crew, and the cargo, it must clearly have appeared, that the ship was a merchant ship bound ón a lawful voyage, and not a piratical cruizer. This state of the case must be admitted to have been apparent. But the real difficulty is of another sort. Her papers, and cargo, and. destination, could give no information of the nature of the attack made upon the Alligator. . However hostile, malignant, or even piratical, the aggression might be, the papers could shed no light upon the subject, The owners of the cargo, and the owners of the ship, (so far at least as their duties and.responsibilities were not bound up by the acts of the master, as their agent,) might be innocent; the voyage might be of a purely mercantile character, and yet, acts of aggression might be committed, *51 which might bring the case completely within the act of Congress, or of the general law nations, as a gross and violent injury, calling for ample redress. The real duty imposed upon Lieutenant Stockton was, not to examine the papers, unless so far as they might explain doubtful circumstances, but to ascertain the nature, object, and intent, of the attack upon his vessel. He was bound to exercise an honest and fair discretion on the.subject, and to obtain such explanations as might guide his judgment. What was the excuse offered for the attack upon him ? It was not that the guns were fired by mistake or accident. They were admitted to have been by authority and design. They were fired after his own flag was displayed, and with the express intention of disabling the vessel and destroying the ’rew. The only excuse offered for this unjustifiable act was, that' the commander entertained a fear that the Alligator was a pirate. But, such a fear, unauthorized by any acts on the other side, was no excusé for a wrong which might have led to the most fatal consequences. If the Alligator had been seriously injured, or any of her crew had.been killed, no doubt could exist, that, under such circumstances, the ship ought to have been sent in for adjudication, to enforce redress, and, also, to. administer, if necessary, punishment; The attack was not the less inexcusable because the consequences were not as injurious as the master intended.

It is a different thing to sit in judgment upon this case, after full legal investigations, aided by.

*52 the regular evidence of all parties, and to draw conclusions sea, with very imperfect means of ascertaining facts and principles, which .ought to direct the judgment. It would be a harsh judgment to declare, that an officer charged with high and responsible duties on the part of his government, should exercise the discretion intrusted to him at the peril of damages, because a Court of law might ultimately .decide, that he might well have exercised that discretion another way. If Lieutenant Stockton had acted with gross negligence or malignity, and with a wanton abuse of power, there might be strong ground's on which to rest this claim of damages. But, it is conceded on all sides, and in this opinion the Court concurs, that he acted with honourable motives, and from a sense of duty to his government. He thought the aggression .was piratical, and that it was an indignity to the national flag, utterly inexcusable. The view now taken by this Court, in respect to the whole case, upon a full examination of all the facts, is certainly somewhat. different. It leads us to say, that Lieutenant Stockton might, without justly incurring the. displeasure of his government, have released the ship, not because she had done no wrong, but because the wrong was not of such a nature as called for vindictive redress.

But, the question upon which damages must depend, is not whether he might not have- released the ship, but, whether he was, at all events, bound so to do; and whether- that obligation *53 was so imperative, that the omission ought to be visited with damages.

We are, then, to consider the real difficulties of Lieutenant Stockton’s situation. An attack had been made upon a national ship under his command without cause. It was a hostile act, an indignity to the nation, and a trespass upon its rights and sovereignty. It was not an accidental, but a meditated act; not necessarily carrying own excuse along with it, but susceptible of different interpretations. It was not. an affair in which he was at liberty to consult his own wishes or. honour merely, although a brave and distinguished officer might naturally feel some solicitude to preserve his high reputation untarnished in the eyes of his government. He was bound to look to the rights of his country. He might well hesitate in assuming the arbitration of national wrongs. He might well feel -a scrupulous delicacy in undertaking to waive any claim which the government had authority to enforce, or to defeat any redress which it might choose to seek, or. to prevent any inquiries which, through its established tribunals, it might think fit to institute, in respect to. his. conduct, or. that of the offending vessel. Considerations of this nature could not but weigh heavily upon tin mind of a gallant officer-; and they are not unfit to be entertairied by this Court in forming its own judgment.

It is, also,farther to be observed, that thé case, was confessedly new in its character and circumstances. The researches of counsel throughout.

*54 the progress of this protracted controversy, have not discovered any case, which, iii point of law, can govern this. If it is new here, it may well be deemed to have been new and embarrassing to Lieutenant Stockton. In such a case, it is not matter of surprise, that he should come to the conclusion that it was not proper to take upon himself the responsibility of a final decision ; but to confide the honour of the nation, as well as the rights of the other party, to judicial decision. No inference is attempted to be drawn,' that his acts were intentionally oppressive and harsh ; and it would be going a great way to de - clare, that an exercise of honest discretion, in a case of wrong on the other side, ought to draw after it the penalty of damages.

Analogy of damages given foe detention on captues jure belli.

There is another more general consideration, which is entitled to great weight in this case. In of capture, strictly so called, no decision has been cited, in which, if the capture itself was justifiable, the subsequent detention for adjudication has ever been punished by damages. As far as counsel have examined, or our own researches extend, no such principle has ever been established. The present case stands upon a strong analogy, and to inflict damages would be to desert that analogy. Even in cases of marine torts, independent of prize, Courts of admiralty are in the habit of giving or withholding damages upon enlarged principles of justice and equity, and have not circumscribed themselves within the positive boundaries of mere municipal law. They have exercised; a conscientious discretion *55 upon the subject. A party, who is in delicto, ought to make a Strong case, to entitle himself general relief.

The case of the Louis, (2 Dodson's Rep.

210.) is a striking example in illustration of these remarks. There, a French slave ship was, in time of peace, taken possession of by an English armed cutter, after a sharp engagement,in which several men were killed on both sides. The ship was carried into Sierra Leone for adjudication, and, subsequently, the cause came before the High Court of Admiralty upon appeal. The decision pronounced by Lord. Stowell appears to have been made after very full consideration, and is expounded in his most elaborate manner. He decided, that the original seizure was totally unjustifiable; and that, even if the slave trade, was prohibited by the French laws, (which, he thought, it was, not,) still, it was not for English evuizers to claim a right of search, or to seize such vessels to enforce those laws. He, therefore pronounced a decree of restitution. But he denied damages and costs to the claimant. .His language on that occasion was, “ Upon the matter of costs and damages, that have been, prayed, I must observe, that it is the first case of the kind, and that the question itself is primee impressionis;

and that, upon both grounds, it is not the inclination of the Court to inflict such a censure.” Here, then, we have a ease of an acknowledged maritime trespass, accompanied with circumstances of immediate and fatal injury, in which the original wrong travelled along with.

Case of the Louis,(2 Dodson's adm. Rep. 210.)

*56 and infected the whole'subsequent proceedings; and yet the Court, on account of its being the first instance, and of the novelty of the question, deemed it a conscientious exercise of its discretion not to award damages. The case before this Court is also of the first occurrence, and the question is entirely new in its presentation. It has this striking fact, in which it is most favourably distinguished from the Louis, that the original seizure was justifiable, and if the intent of piratical aggression had been established, condemnation must have ensued.

•If, then, this Court should, under these circumstances, award damages, it would take a new step, never known to have been taken before by a Court of admiralty. It would desert the analogy of" cases of justifiable capture in matters of prize, and introduce a rule harsh and severe in a case- of first impression, whose bearing and character have engaged the bar and bench in several most laborious discussions, and inflict upon an honest exercise of discretipn, a punishment which has been denied, in the Louis, to an inexcusable wrong.

Case not exclusively cognizable in the tribunals of Portugal.

There are one or two other suggestions which were urged in the argument, that ought not to be. passed over in silence. It is said, that the tort, if it ought to be redressed at all by a pro - ceeding in rem, was exclusively cognizable in the Courts of Portugal. We are not aware of any principle upon which this position can be legally maintained. There is no more reason why the Courts of Portugal should hold exclu *57 sive jurisdiction upon this case, than the Courts of this country. We see no difficulty in supporting the jurisdiction as concurrent in both nations, But, if there be any choice, it seems more properly to belong to the country of the injured, than of the offending, party.

It is also said, that, at all events, the cargo was not liable to condemnation, even if the offending vessel was liable’ under the act of Congress.; Probably this is true in respect to that act. But the second count embraces a wider range; and if it had been proved in its aggravated extent, it does not necessarily follow, that the. cargo ought to be exempted. That is a question which would require grave deliberation. It is, in general, true, that the act of the master of the vessel does not bind the innocent owner of the cargo .; but the rule,is not of universal application. And where the master' is also agent of the owner of the cargo, or both ship and cargo belong to the same person, a distinction may, perhaps, arise, in the principle of decision. But, however this may be, in the present case, if the vessel was sent in for adjudication, the cargo must, of necessity; accompany her;. nor could its particular ownership be fully ascertained, until the examinations of the crew were regularly taken. There is no evidence in this case to show, that at any subsequent period it was desirable, or could have been advantageous to the claimants, to have separated the ship and *58 cargó, and to have instituted a new voyage for the latter under other auspices, *57 How far the ter °Mndsmthe vessel^ the *58 In the District Court, an allowance was made of five hundred dollars, distributable among the crew, on account of their confinement on the passa£e to Boston, upon the ground, that the sending in of the vessel was wrongful. That award Was reversed in the Circuit Court; and no appeal was takpn' by the crew, as, indeed, none could be, on account of the insufficiency of the sum to entitle the parties in interest to appeal. It is only necessary, therefore, to state, that that matter is not now before this Court; and, it is to be presumed, that the confinement was such only as was indispensable for the safety of the seizors.

Question of damages for personal injured credentia1.

Upon the whole, it is the opinion of the Court, that the decree of the Circuit Court ought to be affirmed, and it is, accordingly, affirmed, without costs to either party.

Decree accordingly.