on board at Philadelphia, they then became part of the crew, and the right to capture and make prizes was a right they held jointly with the ship and officers, and residue of the crew. The articles of agreement directed the distribution, and ascertained the share; and the libel is for shares, according to the articles. The demand, therefore, which the libellants make, does not lessen the shares of the residue of the crew, nor call on them for a compensation: It is a demand, which the residue of the crew acknowledged, and agreed to, when they executed the articles. | But it is said, on the dismission of the libellants, their proportion of p. 39 the risk and labour fell on the residue of the crew; and, therefore, they ought to have an additional compensation beyond the articles of agreement.

Whatever compensation, they may, in justice, be entitled to, they cannot dispense with, nor derive it from the articles of agreement. The articles make no provision for such events, and no man, on board, can claim beyond the extent of the articles. On this ground it is, that although a Mariner, who is once shipt on board, and is dismissed by the Captain, without fault, before the voyage is ended, is entitled to his stipulated wages, for the whole voyage; yet the residue of the Crew can only claim to the extent of their contract; although, by the dismission of such Mariner, the risk and labour becomes proportionally greater.

But, it is said, that after the dismission of the libellants, new articles were executed by the Captain, and residue of the Crew; by which their shares of prizes were augmented, in proportion to the lessening of the crew, by the libellants' dismission; and, that the libellants' claim affects their right, under the subsequent articles.

The Captain and the residue of the Crew could not cancel the original articles of agreement. When a contract is made, it can only be dissolved by the consent of all parties. The after articles, therefore, cannot affect the original articles, nor authorize a departure from them.

These articles, instead of militating against the libellants' claim, tend to establish it on another ground: For, they shew that the residue of the Crew approved of the dismission, and therefore ought to be considered as participes criminis, and equally responsible with the Captain.

But, it is said, 'that the libellants did not, by any personal service, contribute to the capture in the present case; that the prize was taken by the ship, the Captain and Officers, and residue of the Crew; and, that although the libellants had a right under the commission to make captures, yet the right was not exercised in the capture of the prize in question.'

The ship, Captain, Officers and Crew, were joint-tenants of the right to capture and make prizes conceded by the commission. Whatever was acquired in consequence of this joint right and interest must be considered as common stock, and like the case of a joint partnership, not subject

to survivorship. Where the right and interest is a joint concern, the question never can be material, which of the parties have been most active and alert: The only question that can arise must be; whether the joint concern and interest is fairly subsisting?

Upon the whole, we are of opinion, that the decree below be affirmed, with costs to the libellants.

Stoddard, Appellant, v. Read, Appellee, and the Schooner Squirrel and Cargo.

(2 Dallas 40) 1783.

ON motion of the Appellant's Counsel, before an appearance filed on behalf of the Appellee, stating that the prize Schooner was in a perishing condition, it was ordered,

BY THE COURT. That the Schooner, her tackle, apparel, and furniture, be sold at public auction, to the highest bidder, for the use of those to whom the same shall be finally decreed.

Bain et al., Appellants, v. Schooner Speedwell et al., Appellees.

(2 Dallas 40) 1784.

THIS was an appeal from the Admiralty of the State of Rhode-Island, where the Schooner had been condemned as prize; and the record was submitted to the decision of the Court, without argument. On the 24th of May, 1784, GRIFFIN, READ, and LOWELL, the presiding Commissioners, delivered the following judgment:

BY THE COURT. It appearing, by the inspection of the record, that the Schooner in question, was captured from the British, since the operation of the preliminary articles of peace, (to wit, on the the condemnation cannot be sustained.

day of

Decree reversed.

Lake, &c., v. Hulbert et al. .

(2 Dallas 41) 1787.

THIS case now came before the Court, on a petition, that the appeal should be sustained: but GRIFFIN, READ, and LOWELL, Commissioners, rejected the application in the following terms.

BY THE COURT. In this case, the judgment of the Court will be determined by the construction of the resolution of Congress, of June, 1786.

Congress having established a system of appeals, and in that system having limited a period, beyond which appeals are not to be entered, we think the resolution of June, 1786, could only mean, that, in conformity with this prior establishment, the judges might use a discretionary power, where particular circumstances, consistent with justice and right, may in their opinion require it.

Whatever decree the Court might have made upon the merits of the cause, and although the property may have been illegally condemned in the maritime Courts: yet under all the circumstances of the present case, we are unanimously of opinion, that justice and right do not require, that the appeal should now be sustained.

Petition dismissed.

The Owners of the Sloop Chester v. The Owners of the Brig
Experiment et al.

(2 Dallas 41) 1787.

A PETITION for sustaining an appeal, with testimony in support of the allegations contained in the petition, being filed, a rule was granted to shew cause, why the appeal should not be sustained. The case was argued, on the 1st of May, and on the 3d of May, GRIFFIN, Read and LOWELL, the presiding Commissioners, delivered the decision of the Court:

BY THE COURT. Having considered the evidence, and arguments adduced by the Counsel for the petitioners, and respondents, we are of opinion, that there is not sufficient cause to admit the appeal of the petitioners, from the decree of the Court of Admiralty, in the State of South Carolina, condemning the Sloop Chester, her Apparel, and Cargo. If the appeal | should be admitted, it must be on this principle, that p. 42 there had been such irregularities in the proceedings, as that justice and right required, that the cause should be re-heard, in order to do that justice here, which had not been done in the Court below. The irregularity suggested is, that the captors did not bring, or send, the master of the captured vessel, in order to be enquired of touching the property, &c. nor produce the documents mentioned by the master, in his protest ; and that, for want thereof, a condemnation had taken place. However blamable the captor may have been, in omitting to send, or bring the master before the Admiralty Court, and in not producing those documents, such omission alone is not sufficient to set aside the decree and re-hear the cause, unless it appeared that substantial justice has been thereby prevented. In this case, upon an examination of all the evidence produced, it appears that the condemnation of the Sloop Chester must have taken place, if the same evidence had been offered in the Admiralty Court.

Peter Theodore Vantylengen appears to have been a merchant in a British settlement, on the Bay of Honduras; not barely having a transient residence, but carrying on trade from that settlement, like other inhabitants. It is not material to whom his natural allegiance was due; he was enjoying the privileges, and subject to the inconveniences of other merchants, residing in the same place. The Sloop Chester appears to have been a British vessel, possessed of British papers, purchased by Vantylengen, and employed by him; and although he might have executed the Bill of Sale of her, to certain subjects of the United Netherlands, with whom the United States were at peace and amity, for the purpose, as he expresses it, of preventing her being taken, such a transfer cannot be considered as bona fide; but, from the tenor of the instructions of said Vantylengen, to the master of the Sloop, that transfer appears to have been intended merely to deceive and cover, under the name of a friend, property which ought to be considered as that of an enemy. Examining the protest made by the master of the Sloop Chester, it does not appear, that he was prevented by the captors from going to Charleston; but on the contrary, his going on shore at St. Eustatia, upon the privateer's leaving that place, seems to have been in consequence of his own solicitation. For these reasons, the Court do not admit the appeal of the petitioners. And, it is considered by the Court, that the petition be dismissed; but as some irregularities, on the part of the captors, have given colour to the petition, the Court do not award costs to the respondents.

+

Abandonment:

INDEX

by owner, and recourse against captor for marine trespass, Maley v.
Shattuck (3 Cranch 458, 491)

by prize crew on high seas, and resumption by them of possession of prize
in neutral jurisdiction, Del Col v. Arnold (3 Dall. 333)

caused by turning away of ship from blockaded port of destination,
McCall v. Ins. Co. (8 Cranch 59, 65)

of prize contended for, The Alexander (8 Cranch 169, 180)

of prize under vis major, The Mary (2 Wheat. 123, 130)

whether made in due time, Livingstone v. Ins. Co. (7 Cranch 506, 521, 529,
538)

PAGE

415, 420, 427

Abatement in proceedings in rem on death of party, Penhallow v. Doane

(3 Dall. 54, 101, 118)

Act of State, The Resolution (2 Dallas 1, 3)

Acts of Congress. See also Revised Statutes :

1789, September 24 (judiciary):

Penhallow v. Doane (3 Dall. 54, 120)
Brown v. U. S. (8 Cranch 110, 137).

sec. 9, jurisdiction:

The Admiral (3 Wall. 603, 612)
The Habana (175 U. S. 677, 680)

secs. 21 and 22, appeals:

The Habana (175 U. S. 677, 680)

sec. 24, judgment on appeal:

Penhallow v. Doane (3 Dall. 54, 108)

sec. 25, error to state court:

The Habana (175 U. S. 677, 683)

1790, April 30 (secs. 8-11, murder and robbery on the high seas):

U. S. v. Palmer (3 Wheat. 610, 626, 629)

U. S. v. Klintock (5 Wheat. 144, 150)

1792, May 2 (calling forth militia):

Prize Cases (2 Black 635, 691)

1792, December 31 (registry of vessels) :
The Venus (8 Cranch 253)

1794, June 5 (neutrality act):

La Amistad de Rues (5 Wheat. 385, 389)

The Appam (243 U. S. 124, 149)

sec. 2, enlisting to go beyond jurisdiction of United States:

The Estrella (4 Wheat. 298, 306, 310)

The Gran Para (7 Wheat. 471, 488)

sec. 7, The Alerta (9 Cranch 359, 366)

1795, February 28 (calling forth militia, sec. 2):

Prize Cases (2 Black 635, 691, 692, 693)

1797, June 14 (neutrality act):

The Gran Para (7 Wheat. 471, 489)

1798, May 28 (prize):

Talbot v. Seeman (1 Cranch 1, 29)

1798, June 13 (non-intercourse)

Bas v. Tingy (4 Dall. 37, 39)

1798, June 25 (prize):

Talbot v. Seeman (1 Cranch 1, 29)

1798, June 28 (prize and capture; restitution):

Bas v. Tingy (4 Dall. 37, 40)

Talbot v. Seeman (1 Cranch 1, 29)

1798, July 9 (prize):

Talbot v. Seeman (1 Cranch 1, 30)

The Peggy (1 Cranchi 103, 108)

154, 157

184

184

199