3. The questions, whether the voyage was broken up, and whether the captain was justified in returning, are questions of law; and if the jury find the facts specially, and draw the legal conclusion, that the facts amount to a justification, the court is bound by that conclusion. Ibid.

4. The insurers do not undertake that the voyage shall be performed without delay, or that the perils insured against shall not occur; they undertake only for losses sustained by those perils; and if any peril begins to act upon the subject, yet, if it be removed before any loss takes place, and the voyage is not thereby broken up, but is or may be resumed, the insured cannot recover for a total loss. Smith v. The Universal Ins. Co., 6 Wheat. 176; 5 Cond. Rep. 54.

BREVET COMMISSION. See COMMISSION BY BREVET.

BRITISH DEBTS.

1. The act of limitations of Virginia is no bar to a British creditor's demand on a promissory note, dated 21st August, 1772; although one of the plaintiffs was in the country after the treaty of peace, viz., in 1784, and remained. Hopkirk v. Bell, 4 Cranch, 184; 2 Cond. Rep. 68.

2. Legal impediments to the recovery of British debts existed in Virginia until the year 1793. Dunlap et al. v. Ball, 2 Cranch, 180; 1 Čond. Rep.

383.

3. The treaty of peace between the United States and Great Britain, prevents the operation of the act of limitations of Virginia upon British debts contracted before the treaty. Hopkirk v. Bell, 3 Cranch, 454; 1 Cond. Rep. 595.

4. Debts due to British subjects, during the revolutionary war, although paid into the state treasury, under the authority of an act of the legislature, may, nevertheless, be sued for, and recovered, after the peace. Hamilton v. Eaton, N. Carolina Cases, 77.

BRITISH TREATY.

the remedies incident thereto, should not be considered as aliens; those claiming to avail themselves of the treaty, must show that the title to the lands in controversy was in them or their ancestors, at the date of the treaty. Harden v. Fisher et al., 1 Wheat. 353; 3 Cond. Rep. 572.

2. The ninth article of the treaty between the United States and Great Britain, of 1794, applies to the title of the parties, whatever it is; and it gives the same legal validity as if the parties were citizens. It is not necessary they should show an actual seisin or possession, but only that the title was in them at the time the treaty was made. Orr v. Hodgson et al., 4 Wheat. 453; 4 Cond. Rep. 506.

3. The ninth article of the treaty of 1794 did not mean to include any other persons than such as were British subjects or citizens of the United States. Ibid.

4. The treaty of peace of 1783, and that of 1794, provide only for titles existing at the time, and not for those subsequently acquired. Blight's Lessee v. Rochester, 7 Wheat. 535; 5 Cond. Rep.

335.

5. Actual possession was not necessary to entitle the party to the benefit of the treaty; but the existence of title at the time is essential. Ibid.

6. By the treaty with Great Britain, it is agreed that every vessel may be turned away from any blockaded or besieged port or place which shall have sailed for the same, without knowing of the blockade or siege; but she shall not be detained, nor her cargo, if not contraband, be confiscated, unless, after notice, she shall again attempt to enter; but she shall be permitted to go to any other port or place she may think proper. The treaty is conceived to be a correct exposition of the laws of nations. Fitzsimmons v. The Newport Ins. Co., 4 Cranch, 185; 2 Cond. Rep. 78.

7. Neither the law of nations nor the treaty admits of the condemnation of the neutral for the intention to enter a blockaded port, unconnected with any fact. Under the treaty, a second attempt to enter the place must be made, after notification of the blockade: and inquiring about the place, as if watching for an opportunity to sail into it, or the single circumstance of making immediately for some other port, or possibly obstinate and determined declarations of a resolu tion to break the blockade, might be evidence of an attempt, after warning, to enter the blockaded port. But whether these circumstances, or others, may or may not amount to evidence of the offence, the offence itself is attempting again to enter; and unless, "after notice, she shall again attempt to enter," the two nations expressly stipulate she shall not be detained, nor her cargo, if not contraband, confiscated. Ibid. See ALIEN AND ALIENAGE.

BROKER.

and therefore may be considered as protected by the policy to the amount of his commissions, or have a lien for his acceptances. Hurlbert et al. v. The Pacific Insurance Company, 2 Sumner's C.

1. The right of a belligerent cruiser of seizing on the high seas, and bringing in a vessel for further examination, does not authorize or excuse any spoliation or damage done to the property; and the captors proceed at their peril, and are liable for all the consequent injury. Del Col v. Arnold, 3 Dall. 333; 1 Cond. Rep. 150.

2. Congress may authorize general hostilities, and in such case the general laws of war will apply; or partial hostilities, when the laws of war, so far as they are applicable, will be in force. Talbot v. Seeman, i Cranch, 1; 1 Cond. Rep. 229.

3. On surrender, by capitulation, all the property of the inhabitants protected by the articles is considered by the law of nations as neutral, are not subject to capture on the high seas by the belligerent or its allies. Miller et al. v. The Resolution, 2 Dall. 1.

4. Every capture is at the peril of the party. The captor, therefore, must show just grounds for the violence, or he is liable to an action for damages; and before he can have condemnation, must prove the ship to be the property of the enemy. Ibid.

5. A sentence of condemnation, as a prize, in the circuit court, although denominated "a final sentence," is not a definitive sentence, in the sense in which that term is used in the convention of the United States and the French republic, finally ratified on the 21st of December, 1801 and a vessel captured as a prize, and condemned by the sentence of the court, previous to the signature of the convention, but from which sentence a writ of error was prosecuted to the supreme court, and was depending at the time of the ratification, was restored to the owners under the fourth article of condemnation. The United States v. The Schooner Peggy, 1 Cranch, 103; 1 Cond. Rep. 256.

6. The commander of an armed vessel of the United States has a right to stop vessels on the high seas for examination. Maley v. Shattuck, 3 Cranch, 458; 1 Cond. Rep. 597.

7. Immediately on the capture, the captors acquire such a right as no neutral can justly impugn or destroy. M'Donough v. Dannery, 3 Dall. 188.

8. The owner of a privateer, capturing neutral property, is not liable to a decree of restitution, unless the property, or its proceeds, came to his hands. Jennings v. Carson, 4 Cranch, 2; 2 Cond. Rep. 2.

9. A vessel sailing ignorantly to a blockaded port is not liable to capture under the law of

11. An officer of such belligerent vessel of war cannot be arrested or sued in the neutral nation, at the suit or instance of individuals, for any capture made on the high seas, and carried for adjudication into a belligerent port. Ibid.

12. A belligerent may arrest a neutral vessel on the high seas, and bring it into the ports of the sovereign under whose commission he acts, for any breach of neutrality; and for such acts is answerable only to the sovereign in whose service he is, and from whom he derives his authority. Ibid.

13. A capture of a neutral vessel, by a belligerent, is a total loss under a policy of insurance, and the assured is entitled thereon to abandon. Rhinelander v. The Ins. Co. of Pennsylvania, 4 Cranch, 29; 2 Cond. Rep. 13.

14. If an American vessel be captured on a circuitous voyage to the United States, in a former part of which she has been guilty of conduct subjecting her to condemnation, although at the time of capture she is committing no illegal act, she must be condemned. The Joseph, 8 Cranch, 451; 3 Cond. Rep. 212.

15. The hostile character of the property at the time of capture establishes the legality of it, and no future circumstances, changing the hos tile character of the claimant to that of a friend or subject, can entitle him to restitution. The Venus, 8 Cranch, 253; 3 Cond. Rep. 109.

16. The right of capture is entirely derived from the law it is a limited right, which is subject to all the restraints which the legislature has imposed, and is to be exercised in the manner which its wisdom has prescribed. The Thomas Gibbons, 8 Cranch, 421; 3 Cond. Rep. 193.

17. Whether the capture is made by a duly commissioned captor or not, is a question between the government and the captor, with which the claimant has nothing to do. The Amiable Isabella, 6 Wheat. 1; 5 Cond. Rep. 1.

18. If the capture be made by a non-commissioned captor, the government may contest the right of the captor after a decree of condemnation, and before a distribution of the prize-proceeds; and the condemnation must be to the government. Ibid.

19. Where a transfer of the capturing vessel in the ports of the belligerent state, under whose flag and commission she sails on a cruise, is set up in order to legalize the capture, the bona fides of the sale must be proved by the usual documentary evidence in a satisfactory manner. La Concepcion, 6 Wheat. 235; 5 Cond. Rep. 77.

20. In order to constitute a capture, some act should be done indicative of an intention to seize

21. The master of a neutral vessel, which is captured, is bound to remain with the ship until condemnation, or a recovery is hopeless; and his wages after the capture, and until the condemnation, &c., are a charge to be paid by the owners, and are ultimately to be borne as a general average by all the parties in interest. Willard v. Dorr, 3 Mason's C. C. R. 161.

22. Where a capture is lawful, the subsequent bringing in of the vessel is not a cause for giving damages. The Marianna Flora, 3 Mason's C. C. R. 116.

23. If there be an animus capiendi, and a submission on one side, and a possession on the other, it constitutes a capture, although no prize crew be put on board. The Alexander, 1 Gallis. C. C. R. 532.

24. Where an enemy's vessel was captured by a private armed vessel of the United States, and subsequently dispossessed by the force or terror of another, the prize was, under the circumstances of the case, adjudged to the first captor, with costs and damages. The Mary, 2 Wheat. 123; 4 Cond. Rep. 65.

25. A capture, made within neutral territory, is, as between the belligerents, rightful; and its validity can only be questioned by the neutral state. The Anne, 3 Wheat. 435; 4 Cond. Rep. 286.

26. If the captured vessel commenced hostilities upon the captor, she forfeits the neutral protection, and the capture is not an injury for which redress can be sought from the neutral Sovereign. Ibid.

27. Upon a piratical capture, the property of the original owners cannot be forfeited for the misconduct of the captors in violating the municipal laws of the country where the vessel seized by them is carried. The Josefa Segunda, 5 Wheat. 338; 4 Cond. Rep. 672.

28. But where the capture is made by a regularly commissioned captor, he acquires a title to the captured property, which can only be divested by recapture, or by the sentence of a competent tribunal of his own country; and the property is subject to forfeiture for a violation, by the captor, of the revenue or other municipal laws of the neutral country, into which the prize may be carried. Ibid.

29. The only point settled, in the case of Glass v. The Betsey, 3 Dall. 6; 1 Cond. Rep. 10, was, that the courts of the neutral country have jurisdiction of captures, made in violation of its neutrality. The Invincible, 1 Wheat. 238; 3 Cond. Rep. 558.

30. Neutral property is not liable to capture; but on a violation of the duties of neutrality, it is in the predicament of enemy's property, and subject to seizure and condemnation. Darby v. The Brig Estern, 2 Dall. 34.

31. Where a capture has been made by a joint concern, and under articles of agreement, it can never be material which party has been most active. Keune et al. v. The Gloucester, 2 Dall. 39.

by neutral courts; and if the capturing vessel claims to be so exempted, the court should inquire whether, and have proof, that she is entitled to the same. Talbot, appellant, v. Jansen et al., 3 Dall. 133; 1 Cond. Rep. 62.

2. Legal Capture.

33. Where a capture is made by captors acting under the commission of a foreign country, such capture gives them a right which no other nation, neutral to them, has a right to impugn, unless for the purpose of vindicating its own violated neutrality. La Nereyda, 8 Wheat. 108; 5 Cond. Rep. 400,

34. A neutral vessel captured by a French vessel of war, and armed and manned by the captors, was liable to be captured by the armed vessels of the United States, under the act of congress of the 28th of May, 1798; but such vessels, after capture, could not be considered as French vessels, and liable to condemnation. Talbot v. Seeman, 1 Cranch, 1; 2 Cond. Rep. 229.

35. Where there is probable cause to believe a vessel, met with at sea, is in the condition of one liable to capture, it is lawful to take her in for examination and adjudication. Ibid.

36. A capture, as prize of war, may lawfully be made within the territorial limits of the United States, at any place below low-water mark. The Joseph; Sargent, Master, 8 Cranch, 451; 3 Cond. Rep. 212.

37. A voyage by an American vessel, from an enemy's port, with a cargo on board, without the license of the government of the United States, is of itself probable cause for the capture. The Liverpool Packet, 1 Gallis, C. C. R. 513.

38. A capture may be well made by a priva teer of the United States, within three miles of the shores of the United States. The Brig Joseph, 1 Gallis. C. C. R. 545.

39, Captures by non-commissioned vessels belonging to the government. Ibid.

40. Probable cause is a sufficient justification for a capture. But such protection may be forfeited by subsequent misconduct or negligence. The George, 1 Mason's C. C. R. 29.

41. To constitute a probable cause of capture, it is not necessary that there should be prima facie evidence to condemn. It is sufficient if there be circumstances which warrant a reasonable suspicion of illegal conduct. Ibid.

42. The brigantine Fanny, a British vessel, was captured within five miles of Cape Henlopen, and brought into the port of Philadelphia. The owners of the Fanny claimed her, as she was alleged to have been taken within the territorial jurisdiction of the United States. The district court refused to restore her. Moxon et al., British Subjects, v. The Brigantine Fanny, 2 Peters' Adm. Decis. 309.

43. Property captured by a French privateer, and sold in a Spanish port before condemnation, and brought by the purchasers to the United States, will be restored on a suit brought by the agent of the first owners, if properly identified,

Dec. 306.

44. The capture of a neutral ship, having enemy's property on board, is strictly justifiable in the exercise of the rights of war. It is no wrong done to the neutral, even though the voyage be thereby defeated. The captors are not, therefore, answerable in pœnam to the neutral, for the losses which he may sustain by a lawful exercise of belligerent rights. It is the misfortune of the neutral, and not the fault of the belligerent. By the capture the captors are substituted in lieu of the original owners, and take the property cum onere. They are, therefore, responsible for the freight which attached upon the property, of which the sentence of condemnation ascertains them to be the rightful owners, succeeding to the former proprietors. The Antonio Johanna, 1 Wheat. 159; 3 Cond. Rep. 525. 45. Pirates may be lawfully captured by the public or private ships of any nation, in peace or in war; for they are the common enemies of mankind, and as such, are liable to the extreme rights of war. The Marianna Flora, 11 Wheat. 1; 6 Cond. Rep. 201.

3. Illegal Capture.

46. A capture upon the high seas was made by a vessel illegally fitted out in the United States, by citizens of the United States, and carrying the flag of the French republic, being commissioned as a privateer, of the Magdalena, a vessel and cargo bound from Curaçoa to Amsterdam; the vessel and cargo being the property of citizens of the United Netherlands. The vessel captured was brought into Charleston, and proceedings were instituted in the district court of the district of South Carolina, to obtain a restitution of the vessel and cargo, and damages from the captors. Held, that the capture was illegal; and that the vessel and cargo should be restored to the owners with damages. Talbot, appellant, v. Jansen, appellee, et al., 3 Dall. 133; 1 Cond. Rep. 62.

47. A capture by a vessel, built, armed, and equipped as a vessel of war, in a neutral country, is unlawful; and the courts of the neutral couutry will decree restitution of the captured property. Ibid.

48. Every illegal act committed on the high seas is not piracy; and a capture may be illegal without being piratical. Ibid.

49. A capture made by a lawfully belligerent cruiser, with the aid and by means of a neutral, who had no right to cruise, is unlawful, and the captured property will be restored by the neutral, if brought within the jurisdiction of its courts. Ibid.

50. The Charming Betsey, an American merchant vessel, sailed from Baltimore on the 10th of April, 1800, under the name of the Jane, for St. Bartholomew's, with a cargo of flour, and afterwards proceeded to St. Thomas, where she was sold to J. S., who was born in the United States, and, while an infant, was removed to St. Thomas, of which place he became a burgher, and there carried on trade as a merchant, mar

schooner, calling her the Charming Betsey, and cleared her out for Guadaloupe. She was captured by a French privateer, and ordered for Guadaloupe as a prize; and was recaptured by the American frigate Constellation, Murray, commander, and carried into Martinique, where the cargo was sold, and the vessel brought to the United States; the vessel and cargo being considered as having violated the law of the United States prohibiting intercourse between the United States and France, and the sale to J. S. being a cover to evade the law. Held, that the recapture was illegal. Murray v. The Charming Betsey, 2 Cranch, 64; 1 Cond. Rep. 358.

51. The act of congress, of the 9th of February, 1799, authorized the seizure on the high seas of vessels of the United States, bound or sailing to any port or place of the French republic. This act did not authorize the capture of a vessel sailing from a French port; and the orders of the president of the United States, to the commanders of the armed vessels of the United States, enjoining the seizure of American vessels sailing from French ports, will not protect them from a claim for damages for the capture of a vessel coming from a port of France. Little et al. v. Barreme et al., 2 Cranch, 170; 1 Cond. Rep. 378.

52. The commander of a United States' ship of war, if he seizes a vessel on the high seas, without probable cause, is liable to make restitution, in value, with damages and costs; even although the vessel is taken out of his possession by a superior force; and the owner is not bound to restore to the recaptor, but may abandon, and hold the original captor liable for the whole loss. Maley v. Shattuck, 3 Cranch, 458; 1 Cond. Rep. 597.

53. A capture made by citizens of the United States, of property belonging to subjects of a country in amity with the United States, is unlawful, wheresoever the capturing vessel may have been equipped, or by whomsoever commissioned; and the property thus captured, if brought within the neutral limits of this country, will be restored to the original owners. Bello Corrunes, 6 Wheat. 152; 5 Cond. Rep. 45.

The

54. Where a capture is made of the property of the subjects of a nation in amity with the United States, by a vessel built, armed, equipped, and owned in the United States, such capture is illegal, and the property, if brought within our territorial limits, will be restored to the original owners. La Concepcion, 6 Wheat. 235; 5 Cond. Rep. 77.

CARRIERS.

1. The law regulating the responsibility of common carriers, does not apply to the case of carrying intelligent beings, such as negroes. The carrier has not, and cannot have over them the same absolute control that he has over inanimate matter. In the nature of things, and