The Sybil.

as prize, as alleged in the libel filed in this cause, or was subject to capture as prize, and charges that the claimants are entitled to damages for the seizure to which it has been subjected by such unlawful arrest. None of the answers or claims aver the port of departure or destination of the prize vessel or cargo, otherwise than as it is stated incidentally, in the claims filed, that the cargo of cotton was shipped from Matamoras, in a British ship, bound to New York.

The testimony in preparatorio, in the cause, was taken before the prize commissioners, December 2 and 3, and the case, with all the proofs, was submitted to the court for decision on the 7th of December instant, without oral argument, or written briefs or points furnished by counsel on either side, and such submission was accepted by the court, on the understanding that the cause stood defaulted on the minutes, and that the only point for consideration under the submission was, whether the facts in evidence supplied probable cause supporting the default supposed to have been incurred by the claimants. The counsel for all parties were importunate that the case might be disposed of without delay, to save the accumulation of costs and damages, and, as the deposition of the master intimated that the vessel was seized off Wilmington, North Carolina, as he supposed, under suspicion that the cargo on board had come from blockaded States, and as I observed discord in the testimony of two others of the witnesses as to the location of the Sybil adjacent to the Carolina shores at the time of her arrest, I regarded the course taken by the claimants in forbearing to contest the case upon the proofs as an acquiescence in the justness of the judgment upon nil dicit. The district attorney and the proctors for the claimants now apprising the court that such view was a misapprehension, and that the submission of the cause, with all the papers, was to be regarded by the court as intended by the parties to have the effect of placing the case in the same situation as if it had been formally contested, I immediately reopened the order, and proceeded to examine the case in the light of one duly and seriously controverted upon all the issues of law and fact propounded by the pleadings and proofs.

The vessel was American built, her name being the Eagle, and, as appears by her certificate of British registry executed at Nassau, N. P., April 28, 1863, she was there transferred to William Stewart, of Liverpool, England, by the acting registrar at Nassau, and was then named the Sybil. A certificate was indorsed on the registry, at the British consulate in New York, April 7, 1864, that Robert H. Ramsay was that day appointed master, in the room of William E.

The Sybil.

Askins. The present master was appointed to the command of the Sybil by O. K. King & Co., merchants, of New York, for the voyage upon which she was captured. Portions of the cotton laden on board belonged to that firm. The vessel sailed under the British flag, and had no other on board of her. The crew captured with the vessel were mostly shipped at New York. Two were shipped for the return voyage on the Rio Grande. The outward voyage was with a miscellaneous cargo from New York to Matamoras, and the return cargo, which was captured, was laden at Matamoras, destined to New York. There is no evidence given in the case showing that the cargo seized as prize consisted of articles contraband of war, or had evaded, or attempted to evade, a legal blockade, or was the property of the public enemy. The same course of trade had been followed by the vessel in voyages immediately preceding the one upon which she was arrested in this action-departing from the port of New York, with a lawful cargo, destined to Matamoras, Mexico, and returning, bound to New York, from Matamoras, or Bagdad, the discharge port in Mexico. In practice, the cotton was sent on board the vessel in lighters, to her anchorage at Bagdad, her place of lading and discharge in Mexican waters, at the mouth of the Rio Grande river. The vessel had proceeded directly to that place from New York, and was on her return voyage to New York, with no other papers or vouchers than the regular clearances given at her ports of departure at each commencement of her voyage, the manifests, bills of lading, &c. Her cargo, shipped at Matamoras, was exclusively cotton, and there is no proof that any portion of it is enemy property. The proof is, that the prize had not stopped at any port, after leaving the mouth of the river Rio Grande, until she was captured on her return voyage. The cotton was carried on freight. There is no other proof of its actual ownership than the bills of lading accompanying its consignment. The house of Foulke & Wilkes shipped the cargo from Matamoras, and were apparently natives of Germany.

The prize vessel had cn board, when arrested, various letters addressed to individuals. They were not asked for from her by the captors, and the master of the captured ship testifies that he did not offer them to the captors, thinking that, as they in no way related to the vessel or her cargo, but were merely the correspondence of individuals from other vessels lying near the Sybil in Mexico, and intrusted to her for conveyance to their families or friends, they did not belong to her.

The Mary.

The voyage of the Sybil, previous to her last one, was from New York to Matamoras, with an assorted cargo of flour, sugar, corn, soap, raisins, hardware, &c. Her crew consisted of eight men-the master, two mates, and five seamen, all shipped at New York, and most of them residents there. The voyage was from New York to Matamoras, and back to New York. She did not touch at any port, on her return voyage to New York, except Hampton Roads, where she was taken after her capture as prize. She was seized about ten o'clock in the morning, in the Gulf Stream, a hundred miles or more off the coast of South or North Carolina. She was entering no port when arrested. She was steering for New York, and did not alter her course, or take any notice of the Iosco, when pursued by her, till she came alongside. She was sailing under English colors, and had no others on board. Every witness examined in preparatorio from the ship's company testifies with great apparent fairness as to the good conduct of the vessel on her voyage, and no testimony is submitted to the notice of the court impeaching the integrity of the whole course of the voyage, except what has been before alluded to as affording plausible ground of distrust-her running suspiciously near to blockaded ports. But I discern no legal cause for pronouncing that there is proof furnished amounting to probable cause for the seizure of the schooner because of her having evaded or attempted to violate the blockade. There must be a decree of acquittal of the schooner and cargo, with

costs.

THE SCHOONER MARY AND CARGO.

Vessel and cargo condemned for an attempt to violate the blockade.

(Before BETTS, J., January 17, 1865.)

BETTS, J.: The above-named vessel, laden with a cargo consisting of cotton, tobacco, and spirits of turpentine, was captured, as prize of war, by the ship-of-war Mackinaw, Commander Beaumont, of the United States navy, on the 3d day of December, 1864, on the Atlantic ocean, in latitude 32° 11' north, longitude 78° 14' west, and was sent into this port for adjudication. On the 22d day of December thereafter, the said prize vessel and cargo were seized and attached by the marshal, upon due process of law, and on the 10th of January, 1865, such attachment was by him returned in open court, and filed therein, upon which arrest and attachment due proclamation was made in court, and defaults were ordered and declared by the court, upon the

The Mary.

motion of the United States attorney. The plea lings and proofs in the case, after such default was taken, and judgment thereupon was rendered by the court, were submitted to the consideration of the court by the United States attorney, and judgment final was moved thereon, for condemnation and forfeiture of the said vessel and cargo.

No paper documents proving the ownership of the vessel were discovered on board the prize. Her master testifies, on his examination in preparatorio, that he believes she belonged to a man residing in Nassau, N. P., named Ferguson; that she sailed under English colors, and had no other on board; that she was captured for attempting to run the blockade imposed and maintained by the United States government against ports of the enemy; that he was appointed to her command in Charleston, by an agent of the owner, and took possession of her at Dewey's outlet, fifteen miles from Charleston; that he shipped all the crew but the mate and one man, at Charleston, November 22, 1864; that he believes the vessel was built in Nassau ; that the Voyage on which she was captured began at Charleston, and was to have ended in Nassau; that her last clearing port previous to her capture was Charleston; that he has no bills of lading or other papers in his possession in relation to the vessel or cargo, and saw none signed, and does not know how many were signed; that the vessel was captured December 3, 1864, off the coast of Charleston, in the Gulf Stream; that he knew of the war, and of the blockade of Charleston, when he sailed; that he was directed to throw overboard papers, if his vessel became exposed to capture; that he threw overboard papers in envelopes, the contents of which he did not know, on the appearance of a vessel previously to the appearance of the one making the capture; that he supposes his vessel ran the blockade of Charleston in going into that port; and that she sailed from Dewey's inlet for Charleston, December 1st, and, on being sighted and approached by the Mackinaw, surrendered herself immediately to that vessel.

Francis Hertz, the only witness on board of the prize vessel at the time of her capture, who was examined in preparatorio, gives substantially the same testimony as to the facts and circumstances of the voyage and the seizure of the prize.

The result of the proofs is clear and satisfactory that the vessel and cargo were designedly employed, when arrested, in violation of the lawful blockade of the port of Charleston, South Carolina.

A decree of condemnation and forfeiture is accordingly pronounced against the vessel and cargo.

The Peterhoff.

THE STEAMER PETERHOFF AND CARGO.

An appeal to the Supreme Court from the decree of this court in a prize cause removes the cause from this court, and places the prize property exclusively under the control of the appellate tribunal.

Pending such an appeal, this court refused to order the costs of the prize commissioner to be paid out of the funds in this case.

The distinction stated between the effects of a capture of property on land by a belligerent and of a capture of prize property at sea.

In the former case the title passes as soon as the capture is complete. In the latter the right of property remains unchanged until a final decree of condemnation by the courts of the country of the captors.

(Before BETTS, J., January, 1865.)

BETTS, J.: This suit was terminated in the district court on the last day of July term, 1863, by the condemnation as prize of the steamship and cargo. A final decree of forfeiture was entered against the vessel and cargo on the 1st of August thereafter, and on the 8th day of the same month the cause was removed, by appeal, to the Supreme Court of the United States, pursuant to the provisions of the act of Congress "to regulate proceedings in prize cases," approved March 3, 1863. (12 U. S. Stat. at Large, 759, §§ 7 and 8.) The cause was thereupon removed, by such appeal, to the Supreme Court, where it is now pending, awaiting, on the docket of the court, its regular course of hearing and final determination.

The removal of the cause from the district court necessarily takes from that court all authority over the subject-matters involved in the suit, and places them exclusively under the control of the paramount tribunal. The latter body alone has capacity to change the position. or use of the res, while it is under contestation. In matters of prize held for adjudication, the tenure of the property seized is eminently qualified, provisional and destitute of absolute ownership. The captors, by the universal rule of the modern law of civilized nations, became only keepers of the arrested property, for the purpose of submitting it to judicial inquiry and judgment; the question of its confiscability for violation of the laws of war preceding and overriding all other questions of title or possession by the captors. It would constitute an undeniable outrage on those laws for the government of the United States, through any of its departments, executive, judicial, or military, to appropriate this prize or its proceeds, mero motu, without the preliminary of a legal scrutiny and condemnation, prosecuted in due form of legal procedure. The distinction between the capture of property by a belligerent during war waged on land, and a prize seizure, is as