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Within the time limited by this act all the officers and men of the launch, or their legal representatives, except Cushing, Howarth, and Gay, brought suits under it in the court of claims, which held that, according to the prize laws in force at the time of the capture, Lieut. Cushing was not entitled to prize money in proportion to his rate of pay, but only as commander of a single ship to one-tenth of the prize money, and had, therefore, received $30,927.84 more than he was by law entitled to; and that Howarth and Gay were entitled to prize money only in proportion to their rate of pay as acting master's mates on the day of the capture, and not according to the pay of the grades to which they had since been promoted, and had, therefore, received, Howarth $18,979.02, and Gay $11,801.52, more than they were respectively entitled to; and that by the amount of these three sums, or $61,708.38, the other 12 captors had received less than they were entitled to; and gave judgment for each of them, or their representatives, accordingly. 19 Ct. Cl. 51.
The name, rank, and pay of the officers and crew on board the launch at the time of the capture, the amount which each one, or his representatives, had received under the prize proceedings, the amount which each should have received in the opinion of the court of claims, and the amount now due to each according to the judgment of that court, were as shown in the following table:
NAME AND RANK.
William B. Cushing, lieutenant.....
The present suit is brought under the act of August 8, 1882, c. 480, by one of the subordinate officers of the launch who had not been promoted since, the capture of the Albemarle. The question whether he has heretofore received less than his lawful share of prize money depends upon the question whether larger shares than the prize act allowed have been awarded and paid to Lieut. Coinmander Cushing, and to Howarth and Gay, who, at the time of the capture, were two of his acting master's mates. The prize court held that Cushing was entitled to share according to rate of pay with the other officers and men on board the launch. The court of claims held that he was entitled to one-tenth of the prize money as commander of a single ship. The question which of these views was correct depends upon the rules laid down in section 10 of the prize act of June 30, 1864, c. 174, (13 St. 306.) By those rules, all commanding officers have certain fractional parts of the prize money; and none of them have, or can elect to take, a share proportioned to their pay. By rule 4, there is to be paid "to the commander of a single ship one-tenth part of all the prize money awarded to the ship under his command,
if such ship at the time of the capture was under the command of the commanding officer of a fleet or squadron, or a division, and three-twentieths if his ship was acting independently of such superior officer." By rule 2, to the commanding officer of a division is to be paid one-fiftieth part of any prize money awarded to a vessel of his division, unless he elects to receive instead the share due to him as commander of a single ship making or assisting in a capture; that is to say, one-tenth. And by rule 1 the commanding officer of a fleet or squadron receives in all cases one-twentieth of all prize money awarded to vessels under his immediate command. So, by rule 3, the fleet captain receives one-hundredth part of prize money awarded to vessels of the fleet or squadron in which he is serving, with the single exception that when the capture is made by the vessel on board of which he is serving, he shares, in proportion to his pay, with the other officers and men on board. It is only "after the foregoing deductions" that rule 5 directs that "the residue shall be distributed and proportioned among all others doing duty on board, (including the fleet captain,) and borne upon the books of the ship, in proportion to their respective rates of pay in the service." 13 St. 309, 310.
Those rules would seem to have been framed upon the theory that in making general regulations for the distribution of prize money it is more just and equitable, and more suitable to the rank of commanding officers, to grant them a certain fractional part, than to determine their shares by their rates of pay, like subordinate officers and men; and upon the supposition that the fractional part awarded to the commander of a single ship will usually be more than equivalent to a share proportioned to his rate of pay. But, whatever may have been the reasons on which the general rules of distribution laid down in the prize act were founded, it is enough to say that those rules are fixed and definite, governing all cases coming within their terms, and are the only guides of all courts and officers charged with the duty of administering the prize act. The share of the commander of a ship is the same, whether he is leading in action or lying disabled in his berth; and the share of the admiral commanding the squadron is not increased if the capture is made by his flag-ship, nor diminished if it is made without his participation or knowledge by another ship belonging to his command. Lumley v. Sutton, 8 Term R. 224, 229; Pigot v. White, 4 Doug. 302; S. C. 1 H. Bl. 265, note; Dr. LUSHINGTON, in Banda & Kirwee Booty, L. R. 1 Adm. & Ecc. 109, 250; Decatur v. Chew, 1 Gall. 506; 11 Op. Attys. Gen. 9, 94. The courts cannot depart from the express law, because of the peculiar bravery or merit of the captors, or any of them, in a particular case. The Atlanta, 3 Wall. 425, 433; Porter v. U. S. 106 U. S. 607, 611; S. C. 1 SUP. CT. REP. 539; The Joseph, 1 Gall. 545, 561; The Anglia, Blatchf. Prize Cas. 566.
We can have no doubt that the launch which took the Albemarle was "a single ship," within the meaning of the rules of distribution in the prize act of 1864. In those rules, the words "single ship" are used in contradistinction to the words "vessel or vessels," which include more than one; and upon a view of the whole act, it is manifest that the word "ship," in the few instances in which it occurs, has no restricted sense, implying three squarerigged masts, or any masts at all, but is synonymous with the general words "vessel of the navy," or simply "vessel," as used throughout the act, and comes within the definition of section 32, by which in the term "vessels of the navy" are to be included, for the purposes of this act, all armed vessels officered and manned by the United States, and under the control of the department of the navy. 13 St. 315. In the re-enactment of the fourth rule in section 4631 of the Revised Statutes, the words "commander of a single vessel" are substituted for "commander of a single ship."
Nor is it material that there was no affirmative proof that the launch had any books. The keeping of books is not made a condition of the right of any vessel to share in prize money. The books of a ship are but the usual evi
dence of service on board; and neither the omission to keep books, nor the neglect of the proper officers to enter names upon them, can be held to cut off those lawfully assigned to duty on board, and actually doing such duty, from participation in prize money awarded to the ship. It is found as a fact that Lieut. Cushing had been detailed by the proper authorities from the ship which he had previously commanded; and as to the other officers and men, the doing duty on board is sufficient prima facie evidence, at least, that they belonged to the launch, and were entitled to share in the prize money. In Wemys v. Linzee, 1 Doug. 324, cited for the United States, the captain of marines, who was denied an officer's share, was no part of the complement of the ship. See Mackenzie v. Maylor, 4 Doug. 3. The launch being a single ship, within the meaning of the prize act, her commander, as well as her other officers and her crew, was entitled to prize money according to the fourth and fifth rules of distribution therein prescribed. The prize court therefore erred in awarding to her commander, instead of his one-tenth of the prize money, a share proportioned to his rate of pay.
Another error occurred in the distribution of the prize money, by order of the secretary of the navy, to Cushing, Howarth, and Gay, according to the rates of pay of the grades to which they had been promoted since the capture. Although prize-money is, strictly speaking, a matter of bounty and not of *right, and no one has any absolute title to it before adjudication, yet, unless the government, acting through the proper department, has clearly manifested an intention to revoke the grant, or to alter the mode of distribution, it is to be awarded and distributed according to the laws in force and the facts existing at the time of the capture. The Siren, 13 Wall. 389; The Elsebe, 5 C. Rob. 173; Stevens v. Bagwell, 15 Ves. 139, 152; Pill v. Taylor, 11 East, 414, and 8 Taunt. 805; 11 Op. Attys. Gen. 102. The direction in the prize act to make distribution among inferior officers and men "according to their respective rates of pay in the service" naturally implies the rates of their pay at the time of the capture, by relation to which the subsequent distribution is made; and not those rates as affected by promotions after the capture and before decree or distribution, although such promotions, so far as affects rank, and possibly ordinary pay, date from the day of the capture. To hold otherwise would be to leave the shares of prize money, not only of the persons promoted, but also of all others on board and entitled to share according to rate of pay, subject to be varied in consequence of delay in obtaining distribution. For these reasons, this court concurs in the conclusions of the court of claims as to the shares of prize money which the officers and crew of the launch were entitled to receive under the prize laws in force at the time of the capture. The inequitable operation of those laws, as applied to a capture by a vessel having so small a number of officers and men as this launch, by which the leader of the enterprise obtains less prize money than a paymaster or an engineer under his command, is a matter for the consideration of congress, and not of the courts.
The report of the committee on naval affairs of the house of representatives, accompanying the bill which was afterwards passed as the act of August 8, 1882, c. 480, referred, among other things, to the following documents: The decrees of the prize court in the case of the Albemarle. The orders of the secretary of the navy for the distribution of the prize money. The opinion of Atty. Gen. Reverdy Johnson, dated November 19, 1849, that if accounting* officers err, designedly or by mistake, the loss must fall on the United States. 5 Op. Attys. Gen. 183. The opinion of Atty. Gen. Pierrepont, dated December 10, 1875, that this launch was "a single ship," within the meaning of the prize act; that her commander was entitled to his fractional part, and could not share according to his pay in the prize money of the Albemarle; and that the rates of pay, according to which others on board the launch were entitled to share in the prize money, were the rates of pay at the time of the capture. v.58-49
15 Op. Attys. Gen. 63. A letter of the secretary of the navy to the counsel of the captors, dated April 24, 1877, stating that, as the prize money of the Albemarle had been fully distributed, and as there was no other fund which he could lawfully order to be paid to her captors, they must look to congress for the relief to which they seemed to be entitled. Report No. 90, H. R. 1st Sess. 47th Cong.
It is evident, therefore, that the act of 1882 was passed with a knowledge of the manner in which the prize money for the capture of the Albemarle had been distributed by the secretary of the navy under the decrees of the prize court; and the reasonable inference is that congress intended, without impeaching the validity of the distribution so made, or affecting the right of any captor to hold the money already paid him, but treating each as having received no more than a suitable reward for his gallantry, to allow out of the treasury, to those of the captors who had received less than their lawful shares according to the rules of the prize act, enough to make up the deficiency. The joint effect of the act of 1882 and the previous distribution is the same as if the prize money had been distributed in conformity with those rules, and congress had afterwards granted to Cushing, Howarth, and Gay, out of money in the treasury, sums in addition to their lawful shares of prize money, as was done in the case of Capt. Perry for captures on Lake Erie in the war of 1812. Act April 18, 1814, c. 70, (3 St. 130.)
It is therefore unnecessary to express an opinion upon the question argued by counsel, whether, under the act of 1864, the jurisdiction of the prize court, upon the condemnation of a prize taken by an armed vessel of the navy, extended to determining the separate shares of the officers and crew, or was limited to adjudging what vessels were entitled to share; and whether, by reason of their force as compared with that of their prize, the whole or the half of the proceeds should go to them,-leaving the distribution among the officers and men to be made by the secretary of the navy, according to the records of the department.1
1 See Act July 17, 1862, c. 204, § 5, (12 St. 607;) Act June 30, 1864, c. 174, 88 1, 7, 9, 10, 16, 27, 28, (13 St. 307-314;) The St. Lawrence, 2 Gall. 19; Proceeds of Prizes, Abb. Adm. 495; The Glamorgan, 1 Spr. 273; The Cherokee, 2 Spr. 235; 5 Op. Attys. Gen. 142.
(113 U. S. 756)
HARDIN, Adm'x, etc., v. BOYD, Adm'r, etc., and others.
(March 16, 1885.)
1 EQUITY PRACTICE-AMENDING PLEADINGS.
No rule can be laid down in reference to amendments of equity pleadings that will govern all cases. They must depend upon the special circumstances of each case, and in passing upon applications to amend the ends of justice must not be sacrificed to mere form, or by too rigid an adherence to technical rules of practice. 2. SAME-ACTION ON TITLE BOND.
In a suit brought by the heirs and administrator of a vendor of land by title bond the bill alleged that the bond had been obtained by fraud, and also that the land had not been fully paid for according to the contract of sale. Its prayer was, among other things, that the bond be canceled; that an account be taken of the rents and profits which the purchaser had enjoyed, and of the amount paid on his purchase; that the title of the complainants be quieted; and that they have such other relief as equity might require. At the final bearing the complainants were permitted to amend the prayer of the bill so as to ask, in the alternative, for a decree for the balance of the purchase money, and a lien on the land to secure the payment thereof. Held, that no error was committed in allowing the amendment. It did not make a new case, but only enabled the court to adapt its relief to that made by the bill and sustained by the proof. The bill, with the prayer thus amended, was in the form in which it might have been originally prepared consistently with the rules of equity practice. Shields v. Barrow, 17 How. 130, distinguished.
3. SAME-STATUTE OF LIMITATIONS-ADVERSE POSSESSION.
Although the debt for unpaid purchase money was barred by limitation under the local law, the lien therefor on the land was not barred; for there was no such open, adverse possession, for the period within which actions for the recovery of real estate must be brought, as would cut off the right to enforce the equitable lien for purchase money.
Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.
The main question on this appeal relates to the alleged error of the circuit court in permitting the complainants, at the hearing, to amend the prayer of their bill so as to obtain relief not before specifically asked, and which, appellants contend, is inconsistent with the case made by the bill. To make intelligible this and other questions in the cause, it is necessary to state the issues and the general effect of the evidence.
On the twenty-eighth day of March, 1871, John D. Ware executed his title bond to William D. Hardin, reciting the sale to the latter of certain lands in Crittenden county, Arkansas, for the sum of $20,000, one-half of which was to be paid at the delivery of the bond, and the remainder, on the first day of January thereafter, in county scrip or warrants; and providing for a conveyance to the purchaser when the purchase money should be fully paid. Ware died, at his home in Tennessee, on the sixth day of December, 1871. In the same month, the probate court of Crittenden county appointed L. B. Hardin (a brother of the purchaser) to be administrator of Ware; and on the fifteenth of January, 1872, his bond having been on that day filed and approved, letters of administration were directed to be issued. Under date of the twenty-third day of January of the same year, L. B. Hardin, in his capacity as administrator, executed to the purchaser an absolute conveyance of all the right, title, and interest of Ware in the lands. The deed recited the payment by the grantee to the said administrator of $10,000 in Crittenden county scrip and warrants, and that the deed was made in conformity with an order of the probate court.
The General Statutes of Arkansas declare that "when any testator or intestate shall have entered into any contract for the conveyance of lands and tenements in his life-time, which was not executed and performed during his