It is claimed on the part of the libellant, that, under the decision of the supreme court in the case of The St. Lawrence, 1 Black, [66 U. S.] 522, this court has jurisdiction of this case, and that the libellant ought to have an opportunity to try the case on its merits.
It is urged that it was irregular to enter the order of January, 1861, as an order of course, and without notice of a motio'n for ■leave to enter it; but I am of opinion that the proceedings on the part of the claimant were regular. After he took the decree in October, 1860, dismissing the libel by default for want of the appearance of the libellant when the case was called for trial, it was regular for him to enter without notice an order of course cancelling the stipulations executed on the part of the claimant. Such an order followed of course the dismissal of a libel, and it did not require any special flat of the court or the judge, or any signature of the judge to the order, or any notice, to authorize its entry. Under rule 145 of this court in admiralty, where proceedings on a decree are not stayed by an appeal, and the decree is not satisfied in ten days after notice to the proctor of the party against whom it is rendered, an order that the sureties of such party cause the engagement of their stipulation to be performed, or show cause why execution should not issue, is an order of course. In view of this practice and of the fact that, where a libel is dismissed, the whole foundation and support of the stipulations is gone, and they fall with the libel as a matter of course, there is no reason why an order cancelling the stipulations should not be an order of course.
But I think that the claimant, by his conduct, followed up by his noticing the cause for trial for the March term, 1864, waived the decree of October, 1860, dismissing the libel, and the order of January, 1861. The only question as to which I have had any hesitation has been, whether the claimant could thus practically assent to the reinstatement of the cause, so as to affect the sureties in the stipulations, and hold them to their liability after the dismissal of the libel, and whether the court could now vacate the decree and the order, so as to hold the sureties still liable on their stipulations. Unless that can be done, the remedy to the libellant is practically worthless. The point, however, is settled by the decision of the supreme court in the case of The Palmyra, 12 Wheat [25 U. S.] 1. In that case, the supreme court dismissed an appeal, and aft-erwards ordered the case to be reinstated. It was contended that the court had no authority to reinstate the case after such a dismissal, because it might operate to the prejudice of the stipulators or sureties to whom the vessel was delivered upon stipulation in the court below. The court, Mr. Justice Story delivering its opinion, overruled the objection and said: “Whenever a stipulation is taken, in an admiralty suit, for the property subjected to legal process and condemnation, the stipulation is deemed a mere substitute for the thing itself, and the stipulators liable to the exercise of all those authorities on the part of the court which it could properly exercise if the ming itself were still in its custody. 'Phis is the known course of the admiralty. It is quite a different question whether the court will, in particular cases, exercise its authority where sureties on the stipulation may be affected injuriously. That is a subject addressed to its sound discretion.” “Every court must be presumed to exercise those powers belonging to it, which are necessary for the promotion of public justice, and we do not doubt this court possesses the power to reinstate any cause dismissed by mistake. The reinstatement of the cause was founded, in the opinion of this court, upon the plain principles of justice and according to the known practice of other judicial tribunals in like cases.” This court has, therefore, clearly the power to reinstate this case. It was dismissed on the idea that the supreme court had decided that this court had no jurisdiction of such a case. The libellant now claims that the supreme court has decided otherwise. He is entitled to try the case and to maintain the jurisdiction of this court if he can, and he cannot try the case unless it be reinstated. The mistake made by the libellant in allowing the case to be dismissed by default, was indeed a mistake of law, and the case would have been in a different position if the claimant had not waived as he did the decree and the order, and, but for such waiver, the court might have been constrained to deny any relief to the libel-lant. Nor is it shown that the sureties will be affected any more injuriously than sureties in any case who may be compelled to respond for their principal. The court acts on the matter as if the vessel were still in its custody. The result is that the case is a proper one for granting to the libellant the relief asked for.
Motion granted.