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Hills v. Ross. 3 D. We are, therefore, of opinion, that the circuit court have suffi. ciently caused the facts, on which they decided, to appear from the pleadings and decree, in conformity to the act of congress.

The decree affirmed. 3 D. 302, 336 ; 7 C. 108 ; 5 P. 190 ; 7 H. 833.

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A plea in the admiralty by one partner, in behalf of himself and his copartners, the rejoinder being signed by a proctor for all the defendants, amounts to a legal appearance of all

the defendants. Prize agents, who receive the proceeds of sales of prizes, and pay them over to the captors

without an order of the court, are responsible to the owners of the captured property for the net amounts so received by them, in case restitution is decreed.

This was a libel to recover the proceeds of certain prize cargoes, captured by Talbot and Ballard, under the circumstances which are stated in Talbot v. Jansen et al. 3 D. 133. The defendants had acted as prize agents, and caused the cargoes to be sold, received the proceeds, and paid them over to the captors.

The defendants' plea was entitled, “ The plea of Ebenezer Hills, one of the company of Hills, May & Woodbridge, in behalf of himself and his said copartners, who are made defendants in the libel of Walter Ross." The replication treated the plea of Hills, as the plea of all the company, and the rejoinder was signed by “ Joseph Clay, junior, proctor for the defendants."

The decree below was against all the defendants, and the writ of error was in their names ; but there was evidence on the record that May had been in Europe during all the proceedings, and no authority from him appeared.

IREDELL, J. The doubt is, whether in a case like the present, one partner can authorize a proctor to appear for the whole company?

Chase, J. This court cannot affirm the decree against persons who were not before the court that pronounced it; and the record must show that they actually did appear. A bare implication, the titling of the plea, or a general statement, that one of the partners acts on behalf of them all, is not sufficient. For though partners in

Del Col v. Arnold. a course of trade, may bind each other, they cannot compel each other to appear to suits, nor undertake to represent each other in courts of law. What, however, is the legal effect of an appearance by a proctor, an officer of the court, is another ground that merits

consideration. [ * 332 ] *On the 11th of August, the chief justice delivered the

opinion of the court, that in the present case, there was a sufficient legal appearance of all the defendants.

The questions on the merits were, whether the defendants had notice of the claims of the original owners of the prizes ; and whether, after paying over the proceeds, they were responsible for any thing, and how much.

By the Court. It appears, that the damages have been assessed in the courts below, in relation to the value of the goods that were captured; but the plaintiffs in error were not trespassers ab initio; and acting only as agents, they should be made answerable for no more than actually came into their hands. The accounts of sales are regularly collected and annexed to the record. We are, therefore, at no loss for a criterion. And we think that the decree should be so modified, as to charge them with the amount of sales, after deducting the duties on the goods, if the duties were paid by them.

3 D. 184.

[*333 ]

* Del Col v. ARNOLD.

3 D. 333.

If a vessel has a Spanish register, and sails under Spanish colors, and has on board accounts

describing her as Spanish property, there is probable cause for seizing her as belonging to Spanish subjects. The right to seize, and send in for further examination, is not the right to spoliate and injure the property captured ; for any damage, or spoliation, the

captors are answerable to the owners, if the property be not condemned as prize. The owners of a privateer are responsible to all concerned, for the conduct of their agents,

the officers and crew of the privateer. The measure of that responsibility is the full value of the property injured or destroyed.

A Libel was filed in the district court of South Carolina, by the defendant in error, against Del Col, and others, the owners of a French privateer called La Montagne, and of the ship Industry and ier cargo, a prize to the privateer, lying in the harbor of Charleston,

Del Col v. Arnold. 3 D. which the libellant had caused to be attached. The case appeared to be briefly this:- The privateer had captured as prize, on the high seas, an American brig called The Grand Sachem, commanded by Ebenezer Baldwin, and owned by the defendant in error. At the time of taking possession of the brig, a sum of $9,993 was removed from her into the privateer, a prize-master and several mariners were put on board of her, and they were directed to steer for Charleston. Just, however, as they hove in sight of the light-house, The Terpsichore, a British frigate, captured the privateer, and gave chase to the prize; whereupon the prize-master run her into shoal water, and there she was abandoned by all on board, except a sailor originally belonging to her crew, and a passenger. In a short time, she drove on shore, was scuttled and plundered. When the marshal came, with process against the brig, she was in the joint possession of the custom-house officers, and the privateer's men; the latter of whom prevented the execution of the process. The Industry and her cargo were then attached by the libellant, and an agreement was entered into between the parties that they should be sold, and the proceeds paid into court, to abide the issue of the suit.

On the evidence it appeared, that The Grand Sachem, had been engaged in a smuggling trade at New Orleans, the Spanish main, &c., and for the purpose of carrying it on, she had procured a register in the name of a Spanish subject, and sailed under Spanish colors. Besides other suspicious circumstances, she had on board, at the time of her capture, a variety of * accounts describing [ * 3341 her as Spanish property, and a trunk containing her papers, among which it was alleged, there was a Spanish register, had been collusively delivered up to the owner, the defendant in error, by one of the sailors. The money removed from her, and taken in the privateer by the British frigate, had been condemned in Jamaica.

The district court pronounced a decree in favor of the libellant, for the sum of $33,329.87, the full value of The Grand Sachem, and her cargo, with interest at 10 per cent. from the 8th of August, 1795, the day of capture; declared "that the proceeds of the ship Industry and her cargo, attached in this cause, be held answerable to that amount,” and directed that the defendant in error should enter into a stipulation to account to the plaintiffs in error for the money condemned as prize to the British frigate, or any part of it, that he might recover, as neutral property. This decree was affirmed in the circuit court, and thereupon the present writ of error was instituted.

The case was considered in four points of view:- 1st. Whether there was sufficient probable cause for seizing and bringing The Grand

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Del Col v. Arnold. 3 D.

Sachem into port for further examination and adjudication ? 2d. Whether, if there was such sufficient cause, the captors can at all be made liable for the consequent injury and loss? 3d. Whether if the immediate captors, who run the vessel into shoal water, and scuttled her, are responsible, that responsibility can be devolved on the owners of the privateer, who had not authorized or contributed to the misconduct? And 4th. Whether The Industry and her cargo could, before condemnation, be attached and made liable in this suit, as the property of the captors ?

The first and second points were argued, at the last term, by Dallas, and Reed of South Carolina, for the plaintiffs in error, and by Pringle, of South Carolina, for the defendant; and the third and fourth points were argued at the present term, by the same counsel, for the plaintiffs in error, and by Ingersoll and Lewis for the defend

ant.

The Court delivered, at different times, the following opinions : On the first point, that there was a sufficient probable cause for seizing and bringing The Grand Sachem into port.

On the second point, that the right of seizing and bringing in a vessel for further examination, does not authorize or excuse any spoliation or damage done to the property; but that the captors proceed at their peril, and are liable for all the consequent injury and loss. On the third point, that the owners of the privateer are responsi

ble for the conduct of their agents, the officers and crew, 1 * 335 ] * to all the world ; and that the measure of such responsi

bility is the full value of the property injured, or destroyed.' On the fourth point, that whatever might, originally, have been the irregularity in attaching The Industry and her cargo, it is completely obviated, since the captors had a power to sell the prize; and, by their own agreement, they have consented that the proceeds of the sale should abide the issue of the present suit.

The decree of the circuit court affirmed. 1 W. 238; 3 W. 546; 10 W. 473; 6 H. 344.

1 Chase and IREDELL, JJ., agreed that the owners were responsible, but differed as to the extent, observing that the privateer's men were justifiable in abandoning, to save themselves from captivity ; but that the removal of the money into the privateer, and the subsequent scuttling of the brig, were unlawful acts.

Jennings v. The Brig Perseverance. 3 D.

* FEBRUARY TERM, 1797.

1 * 336 ]

JENNINGS et al. Plaintiffs in Error, v. The Brig PERSEVERANCE et al.

3 D. 336.

The decision in Wiscart v. Dauchy, (3 D. 321,) confirmed.
An objection that counsel fees were allowed in the court below as part of the damages, can-

not be entertained unless the fact appears by the record. If a prize is sold by agreement, and the money stopped in the hands of the marshal, by

a third person, not a party to the agreement, increased damages are not allowed, but only interest on the debt.

This was a writ of error to remove the proceedings in an admi. ralty cause from the circuit court for the district of Rhode Island. Soon after the decree was there pronounced the district judge died, and Judge Chase had left the district; so that the record was sent up, with all the evidence annexed, but no statement of the facts by the court.

* PATERSON, J. Though I was silent on the occasion, [ * 337 ] I concurred in opinion with Judge Wilson upon the second rule laid down in Wiscart v. Dauchy; and, of course, the court were divided, four to two, upon the decision. I thought, indeed, that excluding a consideration of the evidence, which virtually amounts to a statement of facts, was shutting the door against light and truth; and was leaving the property of the country too much to the discretion and judgment of a single judge. But conceiving myself bound by the rule, and that, in some shape, the facts must be made to appear on the record, I have always since thought it my duty to make a statement, where the counsel would not, or could not, agree in forming one.

As to the present point, though there is no express determination, it was the subject of discussion among the judges at their chamber; an opinion was formed, but not delivered, by the same majority that established the second rule in Wiscart v. Dauchy; and the reasoning of the chief justice in support of that rule, went clearly to this case. I do not, therefore, think, that any new argument can be necessary. However disposed I might have been originally to give the most liberal construction to the act of congress, the decision of the court precludes me from considering the evidence, at this time, as a statement of facts; and if there is no statement of facts, the consequence seems naturally to follow, that there can be no error.

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