The Ned.

THE SCHOONER NED.

Part of vessel condemned, under the sixth section of the act of July 13, 1861, (12 U. S. Stat. at Large, 257,) as belonging to a citizen of a State in insurrection. That act is constitutional.

(Before BETTS, J., March, 1862.)

BETTS, J.: The libel of information charges that the collector of this port seized the schooner Ned, her tackle, &c., as forfeited to the United States under the provisions of the act of July 13, 1861, section six, as belonging, in whole or in part, to citizens of the United States in a state of insurrection. The libel was filed September 7, 1861. An amended libel, detailing more specifically the grounds of forfeiture, and alleging the vessel to be the property of Ely Murray, of Wilmington, North Carolina, was filed November 12, 1861.

Elzey S. Powell intervened, September 9, 1861, by sworn claim and answer, for himself, Ely Murray and others, to the original libel, avowing that the persons named and others were in possession of the vessel at the time of the attachment thereof, and that they alone are the true and bona fide owners of the schooner. No further answer was interposed to the amended libel specifically, but all the claimants named in the former claim, on the fifth of November, 1861, filed extended answers or pleas, embodying six specific exceptions, amounting to special demurrers, and also to a general issue to the libel.

The after proceedings in the suit before this court imply that the merits of the case are submitted for decision on the pleadings, with the addition of the exemplification of the register of the vessel offered in evidence by the district attorney. There is a technical incongruity between the language of the amended libel and the exceptions and demurrers, because, from the dates of their presentation to the court the defensive allegations seem to precede the presentation of the information demanding the forfeiture of the property. This was all well known to the counsel for both parties on the argument of the cause and the submission of the points in controversy to the consideration of the court.

Accepting the pleadings as taking effect in their due order, and that the libellants proceed for the forfeiture of the interest of Ely Murray, and remit all demands of condemnation against the interests of other part owners, it appears, from the pleadings and the certified copy of the registry found on board the vessel

1. That at the time of her seizure she was in possession of Ely Murray and his co-claimants, as owners thereof.

The Thomas Watson.

2. It is alleged that she was owned in North Carolina, and that Murray was a resident of that State.

3. The information sets forth as facts all the particulars necessary to bring her within the provisions of the act of July 13, 1861.

4. The act itself, and the public acts of the government in relation to the existing rebellion within the United States, afford judicial notice that the matter comes within the purview of that statute.

5. In the opinion of the court, the act, if valid in law, authorizes and calls for the condemnation and forfeiture of the interest of the rebel owner in the vessel, unless the statutory provisions are in violation of the Constitution.

6. This court, in the case of Mary McRae, held this enactment to be within the legislative competency of Congress, and enforced its provisions.

It is ordered that the exceptions to the suit be disallowed and overruled, and that judgment be entered in favor of the libellants, forfeiting one-fourth part of the said vessel and her tackle to the United States.

The attorney of the United States having discontinued and remitted all claim in this suit for three-fourths of the value of the vessel and tackle, as belonging to loyal citizens of the United States, such amount of the proceeds is ordered to be restored to the claimants thereof.

THE SHIP THOMAS WATSON AND CARGO.

The libel charged that the vessel, while attempting to violate the blockade, was burned, and that part of her cargo was saved as prize, but no proof was given in support of the libel. The court allowed the libellants thirty days to produce evidence, failing which the libel to be dismissed.

Where the testimony of witnesses from the delinquent vessel is dispensed with, adequate proof must be supplied, aliunde, of the delictum charged, before a condemnation will be awarded.

(Before BETTS, J., March, 1862.)

BETTS, J.: In this case a parcel of merchandise of small value is libelled as prize on the allegation that it was part of the cargo of the ship Thomas Watson, which, in attempting to violate the blockade of the insurgent States, was run on shore, set fire to, and burned, and that this portion of the cargo was taken from the said ship by the naval forces of the United States, and sent to this port in the United States ship Vandalia, for adjudication. It was here libelled by the United States for forfeiture, and arrested by the marshal, under process therein, as prize of war. The property is still held by the

The Henry Middleton.

marshal on that arrest, and due return is made by him of the seizure, and of public notice thereof. No claim or intervention is made in court for the property, and no proofs are given supporting the charges of the libel.

Although, in cases of absolute necessity, proceedings in prize may be prosecuted to effect without the observance of the formalities required by the prize rules, and the attendance and testimony of witnesses from the delinquent ship may be dispensed with, yet adequate proof must be supplied, aliunde, of the delictum charged, to enable the court to sustain the accusation. (Jecker v. Montgomery, 13 How., 498, and 18 Id., 110.) There is no legal proof that the lost vessel committed the offence alleged, or that this parcel of goods was part of her cargo. There is, therefore, no foundation laid for the exercise of prize jurisdiction over it.

The libellants will be allowed a reasonable time to furnish evidence of these facts, and, if they fail to produce such within thirty days from the entry of this order, the suit will be dismissed as not brought within the cognizance of the court.

Order accordingly.

THE SCHOONER HENRY MIDDLETON AND CARGO.

Vessel and cargo condemned as enemy property, and for a violation of the blockade. None of the officers or crew of the vessel were sent into this port with her, or produced with her to be examined as witnesses, but the master subsequently appeared and was examined in preparatorio.

(Before BETTS, J., March, 1862.)

BETTS, J.: The prize in this instance was captured off the coast of South Carolina, August 21, 1861, by the United States ship Vandalia, and sent into this port, and here libelled September 5, 1861. No answer or claim has been interposed or prosecuted by any person.

The vessel and cargo were owned in Charleston, and sailed thence for Liverpool between the 6th and 21st of August, 1861. The master of the vessel knew that the port was blockadeḍ, and the fact was also published in the Charleston papers. The ship's documents were furnished her by the rebel government at Charleston, and she sailed under the rebel flag. When she was chased by the Vandalia, the master of the prize threw overboard the private letters of the shippers of the cargo he was carrying, and also his deck load, to avoid capture.

Judgment of condemnation of the vessel and cargo is rendered, be

The Edward Barnard.

cause the prize was at the time of capture enemy property, (Jecker v. Montgomery, 18 How., 110,) and also because she designedly evaded the blockade of Charleston harbor.

In this case none of the officers or crew of the captured vessel were sent into this port with the prize, nor were they produced with her to be examined as witnesses. This irregularity is substantially cured by the subsequent appearance and examination in preparatorio of the master of the vessel; and, moreover, no one appears to contest the validity and regularity of the capture.

THE SCHOONER EDWARD BARNARD AND CARGO.

Cargo condemned as enemy property, and for a violation of the blockade. There was also a spoliation of papers, and the cargo was sent to sea in an enemy vessel.

It is the usage of prize courts to exercise jurisdiction over property captured on board a vessel without having the vessel itself brought within their cognizance.

(Before BETTS, J., March, 1862.)

BETTS, J.: The schooner Edward Barnard, sailing in the name of a neutral and British subject, and laden with 600 barrels of turpentine, ran the blockade of the port of Mobile on the 10th of October last, and was captured on the 15th of the same month, in the Gulf of Mexico, by the United States vessel-of-war South Carolina as a prize. She was anchored by order of the captors off the outlet of the harbor, and her cargo, by order of the United States flag-officer, because of the insufficiency of the schooner and the heaviness of the weather, was transferred on board the United States storeship Nightingale, and brought in her to this port, and here libelled for condemnation. Whilst the schooner so lay at anchor, after her capture, a storm arose, and she became stranded and lost, and proceedings in court were only carried on against the cargo so seized and transmitted.

It is fully within the usage of prize courts to entertain and perfect their jurisdiction over property captured on board a vessel, without having the vessel itself brought within their cognizance. (Proceeds of Prizes of War, Abbott's Adm. R., 495; 10 American Encyclopedia, 357, art. "Prize," by Story, J.; Jecker v. Montgomery, 18 How., 110; and 13 Id., 498.) In many instances this mode of procedure is indispensable, as in the case of the capture of enemy property in neutral vessels, and when the enemy vessel is destroyed in capture.

The evidence in preparatorio clearly proves that the cargo belonged to residents of Mobile, and thus became enemy property and good

The Sarah and Caroline.

prize of war. The neutral owner of the vessel was also a mercantile resident of the latter place, carrying on trade there, which fact would render his vessel, so employed in aid and to the advantage of the enemy, subject to forfeiture. (Jecker v. Montgomery, 18 How., 110.) But the present proceedings only affect the cargo. Although the arrangements purported to convey title in the vessel to her master, yet it was all palpably factitious and colorable, as the ownership of the vessel was to return to the enemy vendor on his restoring to the supposed vendee the purchase engagement, no actual payment being made on the sale.

These facts transpired on the preparatory examination of the nominal purchaser. It was also proved by the preparatory depositions that a spoliation of papers relating to her cargo, and on board the vessel at the time of her capture, was made by her master and others. It was known at Mobile, by the master and all on board the vessel, when the vessel sailed, that the port was under blockade. The vessel watched her chance and got out covertly.

The proofs are abundantly satisfactory to show that the cargo was enemy property, and was sent to sea in an enemy vessel, the owner well knowing that the port of Mobile was at the time in a state of blockade.

Judgment is, accordingly, given, ordering the condemnation and forfeiture of the property arrested.

THE SCHOONER SARAH AND CAROLINE AND CARGO.

Vessel and cargo held to be enemy property, on the papers found on board; but, no legal proofs being furnished of the actual capture, or of any inability to furnish proof of the time and place of seizure, a decree of condemnation was deferred, until such testimony should be produced, or an excuse be furnished for the admission of secondary proof.

There having been no appearance, on due return of the warrant of arrest of the cargo, and the capture having vested jurisdiction in the court over the property seized, the court ordered the cargo to be sold, and the proceeds to be brought into court. The vessel was not arrested on the monition.

(Before BETTS, J., March 1862.)

BETTS, J.: The libel in this suit alleges that the schooner, with a cargo of sixty barrels of spirits of turpentine, was captured by the United States steamer Bienville, on the 11th of December, 1861, on the Atlantic ocean, off the mouth of St. John's river, Florida, and that they are prize of war.

The schooner, on survey, was at the time reported unseaworthy to be navigated in the winter season to a northern port, and her cargo