The Joseph H. Toone.

trict court, the whole case had passed from its jurisdiction to the appellate court. The res was in that court, and subject to its jurisdiction. There was no longer any valid or operative decree in the court below; and any proceedings affecting the res must take place in the court above. This state of the case must, doubtless, have been well known to the framers of the law, and hence the operation given to the act is entirely prospective.

I am satisfied that the execution in this case, for the reasons above stated, furnishes no authority to the marshal to make a sale of the property in question, and, therefore, I shall, to prevent its sacrifice, order the sale to be stayed, and all proceedings, under the decree below, to be set aside.

THE SCHOONER JOSEPH H. TOONE AND CARGO.

Decree of the district court condemning vessel and cargo for an attempt to violate the blockade affirmed.

(Before NELSON, J., July 17, 1863.)

NELSON, J.: This vessel was captured on the 1st of October, 1861, by the war steamer South Carolina, in the Gulf of Mexico, off Timbalier island and Barataria bay, on the coast of Louisiana. She was of the burden of 145 tons, and was laden with arms, ammunition, coffee, &c., and on a voyage from Havana to Tampico, Mexico. The vessel belongs to Aymar, a British subject, doing business at New Orleans, where he has resided for the past eight years. He was on board at the time of the capture. The cargo belongs to Spanish subjects, and was shipped on board at Havana, ostensibly destined for Tampico.

The only question in the case is, whether or not the vessel was, at the time of the capture, attempting to enter the port of New Orleans, which was in a state of blockade. The owner, who was on board, and the master, knew of the blockade. The vessel, at the time she discovered the war steamer, was heading northwest, and immediately tacked to the southwest, and was chased some four hours before she was overtaken and captured. She was some six degrees, or over five hundred miles, north, out of her proper course for Tampico, and heading towards a pass that would lead to the Mississippi river and New Orleans. Tampico is some eight or nine hundred miles south of west from Havana. The attempted explanation of this departure from the

The Elizabeth.

usual course to Tampico, namely, head winds, and a defective barometer, is not satisfactory. Indeed it is admitted that the wind, at the time of the capture, was from the northeast. No one can look on the map without being struck with the insufficiency of the excuse for the position of the vessel in her extreme northern latitude, compared with her port of destination, and in the vicinity of one of the customary passes to New Orleans. I say nothing about the cargo on board. She had a right to carry it to Tampico. The difficulty in the case is, that the course of the vessel, from the commencement of the voyage until she was discovered by the South Carolina, was utterly inconsistent with an honest destination to that place, and was consistent with an intent to run the blockade of the port of New Orleans. I think that the intent is apparent, and that the vessel was in the act of carrying it into effect.

Decree below affirmed.

THE STEAMER ELIZABETH AND CARGO.

Decree of the district court condemning vessel and cargo for an attempt to violate the blockade, affirmed.

(Before NELSON, J., July 17, 1863.)

NELSON, J.: This vessel was captured, on the 29th of May, 1862, off Charleston, South Carolina, some twenty miles west of the Gulf stream, about eight o'clock a. m., by the steamer Keystone State. She was laden with arms and munitions of war, partly at Havana and partly at Nassau, N. P., and cleared from the latter port for St. John's, N. B., on the 24th of May preceding her capture. Her heading was towards the land, off Charleston, when she first discovered the blockading vessel. She then changed her course to east by north. She had been out of the port of Nassau only four or five days when she was captured. She was what is called an auxiliary steamer, using both sails and steam. No satisfactory reason is given for the position of the vessel at the time of her capture; and the inference is irresistible, from the evidence, not in dispute or doubt, that her intention was to run the blockade of Charleston, and that she was in the act of doing so when she discovered the Keystone State, and changed her course.

Some irregularities were committed on the part of the captors, and in the proceedings on the part of the government, in the court below, which I should afford an opportunity to the claimant to correct, were

The Cheshire.

I not entirely satisfied, upon the facts which are undisputed, and could not be substantially varied by any further proof offered, that the voyage was in reality intended for the port of Charleston, and not for that of St. John's.

Decree below affirmed.

THE SHIP CHESHIRE AND CARGO.

Decree of the district court, condemning vessel and cargo for an attempt to violate the blockade, affirmed.

Where the owner of a vessel and her master are aware of the existence of a blockade at the time the vessel sails on her voyage, and have no reason to believe that it has subsequently ceased, the vessel has no right to approach the blockaded port for the purpose of ascertaining whether the blockade is still in forcee.

(Before NELSON, J., July 17, 1863.)

NELSON, J.: This vessel was captured off the port of Savannah, Georgia, on the 6th of December, 1861, by the steamer Augusta, one of the blockading vessels. She was on a voyage from Liverpool to Nassau, N. P., with directions, from the shipper of the cargo and agent of the owner of the vessel and cargo, to call at the port of Savannah and inquire if the blockade had been removed. The vessel sailed from Liverpool on the 10th of October, 1861, with a cargo of coffee, salt, tin, blankets, &c. She was owned by Joseph Battersby, and the cargo was owned by him and his brother William, both of them merchants of Manchester, England, and British subjects. The firm had an agency at Savannah, Georgia, where they had carried on business several years. The vessel had been purchased from a house at Savannah, the previous winter, by J. Battersby, and carried a cargo from Liverpool to Savannah and back, leaving the port of Savannah in May, 1861. It is quite apparent, from the testimony in the case, that all parties concerned in the present shipment were aware of the blockade of the port of Savannah at the time the vessel left Liverpool, October 10, 1861; and, unless the right existed to call at the blockaded port and inquire there for the purpose of ascertaining if the blockade was still in force, the condemnation of the vessel and cargo is unavoidable.

I agree that, as no official notice of the blockade was given to England, the condemnation in this case must be upheld, if at all, on the footing of the violation of a blockade de facto, in which case the master may have been justified in making the inquiry at the port if the owners

Fifty-two bales of cotton.

and master were ignorant of its existence at the time the vessel sailed from Liverpool. This principle is, I think, well settled. But the difficulty lies in the fact that all the parties concerned were fully advised of the existence of the blockade, and no ground or reason is furnished for a belief that it had ceased. If the master, under the facts and circumstances of this case, could be justified in making the inquiry, he would be in any imaginable case. I lay aside the testimony of the boy, Thornton, as unworthy of credit, and see no ground for the condemnation of the vessel or cargo as enemy's property. But, within the case of the Hiawatha, in the Supreme Court, the decree below is correct, on the ground of an attempt to violate the blockade of the port of Savannah.

Decree below affirmed.

FIFTY-TWO BALES OF COTTON.

Decree of the district court, condemning the property, reversed.

The property was captured on a flatboat fastened to a wharf in Texas, and belonged to a citizen and merchant of New York, who went to Texas before the war to collect debts due to him. The cotton was the proceeds, and claimant used all diligence to collect his effects, with a view to leave the hostile country after the breaking out of the war.

(Before NELSON, J., July 17, 1863.)

NELSON, J.: This cotton was captured from on board a flatboat fastened to the wharf at the town of Lamar, at the head of Aransas bay, Texas. The flatboat was not captured, but a schooner, called the Monte Christo, lying in the same waters, undergoing repairs, and on board of which, as is claimed, it was intended to place the cotton, was captured. This vessel was afterwards burned, but her master was brought to New York, and has been examined in preparatorio. The cotton belongs to a citizen and merchant of New York, who had gone to the south, just before the breaking out of the war, to make collection of debts, and was engaged, at the time, in gathering together the funds realized from these collections, with a view to make his way home. The cotton in question comprised a part of these funds. He was not a resident south, nor engaged in business there. The war found him there temporarily, for the purposes above stated. The property was not enemy's property, nor is it pretended that there was any intention to run the blockade. The court below and its officers seem to have been in some doubt whether the proceedings against the cotton were on the prize or the instance side of the court. It was

The North Carolina and The Aigburth.

not on board of the vessel captured, which was undergoing repairs, nor was it to be placed on board unless, after she was repaired, she should prove seaworthy; and, if it had been on board, there is no proof of any intent to run the blockade.

The only pretext for condemnation is, that the property in question was enemy's property, which I think is not sustained. It appears to me that the claimant used all diligence to collect his effects, with a view to leave the hostile country, after the breaking out of the war, and is brought fairly within the principle of international law that protects him.

Decree below reversed.

THE SHIP NORTH CAROLINA AND CARGO.

Decree of the district court, condemning vessel and cargo as enemy property, affirmed.

(Before NELSON, J., July 17, 1863.)

NELSON, J.: This vessel was captured off Cape Henry, on the 14th of May, 1861, by the steamer Quaker City. Her owners were citizens and residents of the State of Virginia at the time. She has been condemned as enemy property.

Decree below affirmed.

THE SCHOONER AIGBURTH AND CARGO.

Decree of the district court, condemning the vessel and cargo as enemy property, and acquitting the vessel on the charge of breaking the blockade, affirmed.

(Before NELSON, J., July 17, 1863.)

NELSON, J.: The vessel in this case was captured at sea, off the coast of Florida, near Fernandina, on the 31st of August, 1861, by the Jamestown, a vessel-of-war. The Aigburth was on a voyage from Matanzas, Cuba, to St. John's, N. B., with a cargo of molasses. She left the port of Newbern in July, with a cargo of rice, for Matanzas. At the time of her egress, the port was not actually blockaded.

The vessel and cargo belonged, at the time of capture, to C. Gravely, a British subject, but resident and doing business in Charleston, S. C. The court below condemned the vessel and cargo as enemy property, and acquitted the vessel on the charge of breaking the blockade.

I concur in that decree.