Embezzlement. the omission of a ma- controvert it, yet it is prima facie evidence. he statute, viz: Ibid. William kenb. C. EMBARGO AND NONTEROVNI d section of the embargo Sermane à 3 vormi pan ch. 170, a vessel is not collerade, 25 8 3 3 boys, parting without a clear age so as to pecure the ed out of port; pro- Ons v. Water, LiH and a half, intend- 271. got out of the departure as ed States, 30. Under the à tà sveter at of January 9, 1808 ch 1.2 a vn to an or in part by foreigners dom end means a vessel pargating ser foreign power; and not a vese, ered yen States. The Sally, 1 Galis C C R & jurisdictional limits of the United. Sa es 31. A departure from any place ugh such place be not within any pet a the provisions of the embargo act of D22, 1807, ch. 109. The Aun, 1 Gas el which, during the existence of s, departed from one port in the voyage to another, but was ple necessity to put into a cargo, was not guilty The Brig Wilizam [ the different 21 be col * make 61. After a vessel has been seized and libelled, and forfeiture claimed, the court of admiralty does not lose its jurisdiction to condemn the vesrsel by losing possession of it. Ibid. 348. e with is the ibits all registered any foreign al act of Januof forfeiture to ther act, it is not uld set forth the parvessel. United States Charles, 1 Brockenb. C. 62. An order made by a district judge of the ted States, for the release of a vessel libelled ach of the embargo laws, is as valid if judge at his chambers, as if it were urt. United States v. The Schooner Brockenb. C. C. R. 380. ne condition of a bond is, that the perform the decree of the court, the court," means the court which shall y decide the cause. Ibid. By the provisions of the embargo laws, a el licensed for the coasting trade was not quired to obtain a clearance or permit, on departing from a port of the United States; but a clearance only was necessary on her departure from a district of the United States. The bond required to be given by vessels of this description, was the only security provided against her leaving a port. The Sloop Elizabeth, Paine's C. C. R. 10. a in the act exempting foreign penalties, in certain cases, need The libel is good, though it rge that the vessel libelled was not within the exception. Ibid. vessel is charged with having violated bargo acts, in departing from a port of the ed States, and proceeding to Antigua. The oof is, that she was at Camden, in North Carolina, in December, 1807, and January, 1808, and was in the port of Norfolk in April, 1808. Held, that the report and manifest of her cargo, with the affidavit made by the captain, before the collector at Norfolk, which are adduced as proof that she took in her cargo at Antigua, is admissible evidence. 1st. These documents constitute one entire transaction: they need not the entry of the ship to make it complete. 2d. In a prosecution against the ship itself, a forfeiture is incurred by her violation of the act, whether with or without the authority of the owner. The vessel is put in action by the crew, who are guided by the master; she acts and speaks by the master, and reports herself by the master; she is, therefore, affected by his report, whether the owners be so affected or not. But the owner is properly affected by it. The master is selected by the owner as his agent, amongst other things, for reporting the vessel. The report is prescribed by law. It must state, truly, the voyage, and the place from which she last sailed. The owner then, has authorized the master to make the report; and though he may 65. Long Island Sound does not belong either to Connecticut or New York; nor to any district of either of those states. A coasting vessel, therefore, sailing from a port of New York into the Sound, although she did not enter a district of Connecticut, departed from the district of New York; and not having a clearance, as required by the embargo laws, was held to be forfeited. Ibid. EMBEZZLEMENT. 1. Where an embezzlement takes place on board of a ship, the seamen are not liable to contribute out of their wages, unless it was caused by their fraud, connivance or negligence; or, if the offender is unknown, unless a presumption of guilt is fixed on all the crew; or at least on those who are called upon to contribute. Spurr v. Pearson, 1 Mason's C. C. R. 104. 2. The right to salvage is forfeited by embezzlement on the part of the salvors; whether in port or at sea. The Schooner Boston, 1 Sumner's C. C. R. 328. 3. Embezzlement by the salvors, after the property is put into the hands of the marshal, is a forfeiture of salvage, and that, whether at the time the custody of the property be in the salvors or not. Ibid. 4. The captain is not answerable for embezzlement, after the capture of the vessel under his command; nor can he be called upon for contribution, as he would have been in his former capacity. Brevoor et al. v. The Ship Fair American, 1 Peters' Adm. Decis. 98. 5. In a foreign port, where labourers were mixed with the crew, seamen are answerable for embezzlement, unless they can show that the plundering was the act of the strangers. 2 Peters' Adm. Decis. 240. Embargo and Non-Intercourse. this defect. The United States v. The Nancy, 3 | bition of the third section of the act of 1808, ch. Wash. C. C. R. 281. 8. That section was not repealed by the nineteenth section of the act of 1809, ch. 91; or by the second section of the act of 28th of June, 1809, ch. 9. Ibid. 38. Where a bond had been taken by the collector, by which the obligor stipulated to reland a cargo on board a particular vessel in the United States, although the same might be prevented by the perils of the sea; and stipulating that a certificate of the landing of the cargo should, within a limited time, be delivered to the collector of the port of Philadelphia, to whom the bond had been given; the court held the bond void, the embargo laws not authorizing the insertion of such stipulations. The United States v. Morgan et al., 3 Wash. C. C. R. 10. 39. Debt on a bond given under the embargo laws. The question on the evidence was, whether the defendants were prevented, by perils of the sea, from performing the condition of the bond. It was alleged that the vessel was, by perils of the sea, driven into St. Thomas; and that, when there, the authorities of the island obliged the master to sell her cargo. The United States v. Mitchell et al., 3 Wash. C. C. R. 95. 46. Under the third section of the act of 1808, ch. 8, the return cargo was not affected with the forfeiture. Ibid. 47. The fourteenth section of the act of 1809, saved the provisions of the embargo acts from affecting collection districts adjacent to a foreign territory, or vessels bound thereto. The Sloop Falmouth and Cargo, Robert Little, Claimant, 2 Gallis. C. C. R. 130. 48. By the nineteenth section of the act of 1809, ch. 91, and second section of the act of 1809, ch. 9, the embargo acts were, as to future cases, repealed. The Orono, 2 Gallis. C. C. R. 137. 49. The third section of the embargo act was not repealed by the act of 1809, ch. 91. The Argo, Gallis. C. C. R. 150. 50. An offence, punished by fine and imprisonment, under the embargo act of 1809, ch. 72, was not saved from repeal, by the saving clause of the second section of the act of June, 1809, ch. 9. United States v. Mann, 2 Gallis. C. C. R. 177. 51. The circuit court has cognizance of such an offence. Ibid. 52. The assignment of breaches in an action upon an embargo bond, is a part, and a very important part of the declaration; and upon demurrer to the declaration, the plaintiff's attorney will not be permitted to strike out the 40. The certificate of the governor of St. Thomas, without a seal, the signature of the governor being proved, was offered in evidence to prove the refusal of the governor to permit the vessel to proceed. It was admitted in evidence to prove the facts alleged. The matter stated in the certificate was official. If the vessel was not seaworthy, the injury done to her on her voyage, by perils of the sea, will not excuse the defendants, who should clear themselves from all imputations of this kind; but the rule as to seaworthiness ought not to be more strict, in such cases as this, than in the case of insur-assignment of breaches, on the ground that the ance. It is sufficient, if the vessel were seaworthy for the voyage upon which she was destined; and the want of this must be proved by him who affirms the fact, if sufficient causes for her disability, such as storms, &c., can be proved. Aliter, if no such cause appears. Ibid. declaration is good without it. Such a course would not be tolerated in any court. William Dixon et al. v. The United States, 1 Brockenb. C. C. R. 177. 53. A variance between the declaration and bond, is an erroneous description of the instrument referred to, so that it does not appear to be the same, when produced in evidence, either on oyer, or at the trial. Ibid. 41. Information against the brig Agnes, a coasting vessel, for a breach of the embargo laws, she having proceeded from the United States, in December, 1808, to St. Bartholomew, 54. A bond, made payable to "The United where she was sold to the appellant, and after- States of America," would, it seems, be binding wards returned to Philadelphia with a cargo. A at common law, for "The United States of forfeiture of the vessel, imposed by the embargo | America," are a corporation endowed with the laws, cannot be enforced after she has arrived capacity to sue, and be sued, to convey and rewithin the jurisdiction of a foreign power; but ceive property. Ibid. the United States must then resort to the penalties imposed by those laws, and proceed for double the value of the vessel and cargo, to which they are entitled upon their violation. Parker v. The United States, 2 Wash. 361. 42. The obvious intention of the legislature of the United States, by the non-intercourse laws, was to prohibit the American citizens and property from a commerce with foreign countries. The Sally and Cargo, 1 Gallis. C. C. R. 58. 43. At no time was it illegal for a foreign vessel to depart from the United States in ballast. Ibid. 55. An embargo bond, made payable to the United States, is good, though the act directed that the master, &c., should give bond to the collector of the district from which the vessel was bound to depart; the proper construction of that act requiring, that the bond should be taken by the collector, but made payable to the United States. lbid. 178. 56. A clause was inserted in an embargo bond, not authorized by the statute, and a condition was omitted which the statute directed to be inserted. It seems: 1. That a statutory end, that contains more than the statute requires, is not vitiated by the surplus matter; but the court will reject the surplusage, as a mere nullity, and construe the bond as if such surplus 45. A registered vessel was within the prohi-matter were not contained in it. 2. That a sta 44. Onus probandi rests on the claimant setting up a special defence. The Short Staple, 1 Gallis. C. C. R. 104. Embezzlement. tutory bond is vitiated by the omission of a material condition required by the statute, viz: "dangers of the seas excepted." William Dixon et al. v. The United States, 1 Brockenb. C. C. R. 178. 57. A statutory bond, taken in a penalty greater than that prescribed by law, is void, whether the statute prescribes a specific sum as a penalty, or a standard by which the penalty is to be measured, so as to give a precise sum. If, in the latter case, from the nature of things, the exact penalty could not be ascertained with absolute mathematical precision, and the variance should be so inconsiderable as to be entirely compatible with an honest difference of opinion: it would be a question to be decided by a jury, whether, under such circumstances, the signature, without objections by the obligor, would not import his assent to the estimate as the true value. Ibid. 58. A libel against a vessel for violating the embargo laws, must contain a substantial statement of the offence, and it must be made with reasonable precision. But, inasmuch as the embargo act of December, 1807, prohibits all vessels, whether foreign or domestic, registered or coasting vessels, from sailing to any foreign port or place, and the supplemental act of January, 1808, annexes the penalty of forfeiture to any vessel which violates either act, it is not necessary that the libel should set forth the particular character of the vessel. United States The Schooner Little Charles, 1 Brockenb. C. C. R. 347. V. 59. The exception in the act exempting foreign vessels from its penalties, in certain cases, need not be noticed. The libel is good, though it does not charge that the vessel libelled was not embraced within the exception. Ibid. 60. A vessel is charged with having violated the embargo acts, in departing from a port of the United States, and proceeding to Antigua. The proof is, that she was at Camden, in North Carolina, in December, 1807, and January, 1808, and was in the port of Norfolk in April, 1808. Held, that the report and manifest of her cargo, with the affidavit made by the captain, before the collector at Norfolk, which are adduced as proof that she took in her cargo at Antigua, is admissible evidence. 1st. These documents constitute one entire transaction: they need not the entry of the ship to make it complete. 2d. In a prosecution against the ship itself, a forfeiture is incurred by her violation of the act, whether with or without the authority of the owner. The vessel is put in action by the crew, who are guided by the master; she acts and speaks by the master, and reports herself by the master; she is, therefore, affected by his report, whether the owners be so affected or not. But the owner is properly affected by it. The master is selected by the owner as his agent, amongst other things, for reporting the vessel. The report is prescribed by law. It must state, truly, the voyage, and the place from which she last sailed. The owner then, has authorized the master to make the report; and though he may | controvert it, yet it is prima facie evidence. Ibid. 61. After a vessel has been seized and libelled, and forfeiture claimed, the court of admiralty does not lose its jurisdiction to condemn the vessel by losing possession of it. Ibid. 348. 62. An order made by a district judge of the United States, for the release of a vessel libelled for a breach of the embargo laws, is as valid if made by the judge at his chambers, as if it were made in open court. United States v. The Schooner Little Charles, 1 Brockenb. C. C. R. 380. 63. Where the condition of a bond is, that the parties will perform the decree of the court, the term "the court," means the court which shall ultimately decide the cause. Ibid. 64. By the provisions of the embargo laws, a vessel licensed for the coasting trade was not required to obtain a clearance or permit, on departing from a port of the United States; but a clearance only was necessary on her departure from a district of the United States. The bond required to be given by vessels of this description, was the only security provided against her leaving a port. The Sloop Elizabeth, Paine's C. C. R. 10. 65. Long Island Sound does not belong either to Connecticut or New York; nor to any district of either of those states. A coasting vessel, therefore, sailing from a port of New York into the Sound, although she did not enter a district of Connecticut, departed from the district of New York; and not having a clearance, as required by the embargo laws, was held to be forfeited. Ibid. EMBEZZLEMENT. 1. Where an embezzlement takes place on board of a ship, the seamen are not liable to contribute out of their wages, unless it was caused by their fraud, connivance or negligence; or, if the offender is unknown, unless a presumption of guilt is fixed on all the crew; or at least on those who are called upon to contribute. Spurr v. Pearson, 1 Mason's C. C. R. 104. 2. The right to salvage is forfeited by embezzlement on the part of the salvors; whether in port or at sea. The Schooner Boston, 1 Sumner's C. C. R. 328. 3. Embezzlement by the salvors, after the property is put into the hands of the marshal, is a forfeiture of salvage, and that, whether at the time the custody of the property be in the salvors or not. Ibid. 4. The captain is not answerable for embezzlement, after the capture of the vessel under his command; nor can he be called upon for contribution, as he would have been in his former capacity. Brevoor et al. v. The Ship Fair American, 1 Peters' Adm. Decis. 98. 5. In a foreign port, where labourers were mixed with the crew, seamen are answerable for embezzlement, unless they can show that the plundering was the act of the strangers. 2 Peters' Adm. Decis. 240. Enrolled and Licensed Vessels. 6. The policy of the law, as to liability of seamen for embezzlement, does not apply so strictly, when strangers are introduced among the crew by the master. Ibid. 7. Labourers hired occasionally, are not on a footing with the mariners hired for the voyage; so as to produce responsibility in the seamen for their embezzlement. Ibid. 8. All the seamen must contribute to embezzlement, in proportion to their wages; and the wages of the perpetrators of the embezzlement go to the relief of innocent members of the crew. Ibid. 9. A seaman who is absent from the vessel, at the time of the embezzlement, is not exempt from contribution. Ibid. 10. The perpetrator of the embezzlement forfeits all his wages; although, in cases of petty plunder, exceptions have been made. Ibid. 11. Where articles belonging to the cargo are embezzled by the fraud or negligence of a seaman, he is chargeable for the value; and the amount may be deducted from his wages. Edwards v. Sherman, Gilpin's D. C. R. 464. 12. Where articles belonging to the cargo are embezzled, an innocent seaman is not chargeable for the loss occasioned by the fraud or negligence of others; nor is he to contribute any portion of his wages to make it good. Ibid. 13. A seaman is chargeable for the value of articles lost by his inattention and carelessness, and the amount may be deducted from his wages. Brown v. The Neptune, Gilpin's D. C. R. 91. 14. All the crew must contribute, pro rata, to make good the value of articles of the cargo which have been embezzled; but proof will be admitted to show the innocence of some of the crew. Sullivan et al. v. Ingraham, Bee's Adm. Decis. 182. 15. The policy of the law, which obliges mariners engaged for a voyage, to be responsible for each other, in cases of embezzlement, does not apply when occasional labourers, or other strangers, commit depredations without the fault, negligence, or connivance of all, or any part of the crew. Mariners v. The Kensington, 1 Peters' Adm. Decis. 240. 16. The burden of proof lies on the crew, who are answerable for embezzlement, unless they can clearly show that it was committed by persons not of the crew. Ibid. 17. Although part of the embezzlement is fixed on, and paid by some of the crew, yet all are to contribute to the residue. Crammer v. The Fair American, 1 Peters' Adm. Decis. 242. 18. The whole must contribute, according to their respective wages, the captain and officers of the ship included. Nor is any one to be excused from this general contribution, though absent from the ship, and not in a situation to be capable of assisting in the plunder. Ibid. ENROLLED AND LICENSED VESSELS. 1. Under the eighth section of the coasting act of 1793, chap. 8, no forfeiture is incurred, until the vessel has actually broken ground, with intention to commence a foreign voyage. The Julia, 1 Gallis. C. C. R. 43. 2. The forfeiture, in such case, does not attach, until the vessel has actually quitted the port, with an intent to proceed in such foreign voyage. The Friendship and Cargo, 1 Gallis. C. C. R. 45. 3. "Foreign voyage," in the eighth section of the coasting act, means a voyage intended to some place within the jurisdiction of a foreign country, or at least without the territorial waters of the United States. The Lark and Cargo, 1 Gallis. C. C. R. 55. 4. If a coasting vessel be engaged in illegal traffic, it is a good cause of forfeiture, within the twenty-third section of the act of 1793, ch. 8. The Two Friends, 1 Gallis. C. C. R. 118. 5. If a vessel, licensed for the fisheries, take on board goods with intent to transport them on an illicit voyage, it is a sufficient "trade, other than that for which she was licensed," within the same section. Ibid. 6. A licensed vessel, transferred in whole or in part to a foreigner, is forfeited under the same section; notwithstanding, upon such transfer, the license becomes void. Ibid. 7. Under the same rule, the cargo found on board, at the time of seizure, is forfeited; and not merely the cargo on board at the time of committing the offence. Ibid. 8. A voyage to a foreign port, within the usual voyage of vessels licensed for the fisheries, is not a "foreign voyage," within the meaning of the eighth section of the act of 1793, ch. 8. There must be an intent to trade. The Three Brothers, 1 Gallis. C. C. R. 142. 9. If a coasting vessel arrive from one district, at another district in the same state, having on board foreign goods exceeding eight hundred dollars in value, without being provided with, or exhibiting a manifest of such cargo, this is not an offence for which the vessel is forfeited, under the act of 1793, ch. 8. The America, í Gallis. C. C. R. 231. 10. By illegal traffic, a coasting vessel loses the protection of her license, and is forfeited under the 23d section of the act of 1793, ch. 8. The Mars, 1 Gallis. C. C. R. 237. 11. Under the act for enrolling and licensing coasters, of February 8th, 1793, ch. 153, no coaster can be sold in a foreign port, unless her license be previously surrendered; nor is her American character changed by such transfer. United States v. The Hawke, Bee's Adm. Rep. 34. 12. If a vessel licensed for the fisheries be engaged in an illegal traffic, she is forfeited under the 23d section of the coasting act. The sixth section does not apply to licensed vessels. The Eliza, 2 Gallis. C. C. R. 4. 13. The transportation of merchandise for hire is a trade which subjects such licensed vessels to forfeiture. Ibid. 14. If a vessel licensed for the coasting trade engage in smuggling foreign goods, she is forfeited under the 32d section of the coasting act, The Resolution, 2 Gallis. C. C. R. 47. 15. By the act of congress relating to the en Entry and Location of Lands.-Pennsylvania.-Virginia.-North Carolina. tolment of ships and vessels, it is not required to make a bill of sale of a vessel valid that it shall be enrolled in the custom-house. The enrolment seems not to be necessary by the law to make the title valid, but to entitle the vessel to the character and privileges of an American vessel. Hozey v. Buchanan, 16 Peters, 218. 16. A bill of sale of a vessel, accompanied by possession, does not constitute a good title in law. Such an instrument, so accompanied, is prima facie evidence of right; but, in order to constitute a full right under the bill of sale, the transfer should be bonâ fide, and for a valuable consideration. Ibid. See FISHERIES. ENTRY AND LOCATION OF LANDS. 1. Pennsylvania 2. Virginia 3. North Carolina.. 4. Tennessee.. 5. Kentucky 6. Ohio.... 1. Pennsylvania. the purpose of proving a general opinion, that the lands contained in the plaintiffs' survey, made under the order of the court, after the commencement of the suit, were vacant at the date of such entries; and to disprove notice to him of the identity of plaintiffs' claim when he made the entries under which he claimed. This evidence was unquestionably irrelevant. Stringer et al. v. The Lessee of Young, 3 Peters, 337. 7. Entries made subsequent to the plaintiffs' claim, whatever might have been the impres sion under which they were made, could not, possibly, affect the title held under a prior entry. Ibid. 8. The land law of Virginia directs that, within three months after a survey, the surveyor shall enter the plat and certificate thereof in a book, well bound, to be provided by the court of his county, at the county charge. After prescribing this, among other duties, the law pro601 ceeds to enact, that any surveyor failing in the 601 duties aforesaid, shall be liable to be indicted. The law, however, does not declare that the validity of such survey shall depend in any degree on its being recorded. Ibid. 601 602 602 606 1. If the outlines of a large tract of land be correctly surveyed, no third person has a right to impeach the interior locations, or to object that any of the warrants, within the outlines, were not properly surveyed. Lessee of Huidekoper v. Burrus, 1 Wash. C. C. R. 109. 2. If a warrant be located on one tract, and afterwards lifted and located upon another, to which no third person has, in the interim, acquired a title, it is valid: aliter, if another has acquired a title to the land thus covered in the intermediate period. Ibid. 3. To render an application à location on the day it was made, the land must be described with such certainty that subsequent applicants may know how to appropriate the adjacent land without danger of interference. Lessee of Lewis v. Meredith, 3 Wash. C. C. R. 81. 2. Virginia. 4. The owner of a survey made in conformity with his entry, and not interfering with the rights of any other person, may abandon his survey after see v. Myers, 7 Wheat. 23; 5 Cond. Rep. 215. 5. The provision of the act of March 2d, 1807, ch. 76, which annuls all locations made on lands previously surveyed, applies to subsisting surveys in which an interest is claimed; not to those which have been abandoned, and in which no person has an interest. Ibid. 3. North Carolina. 9. In North Carolina the want of an entry nullifies a patent. Polk's Lessee v. Wendall, 9 Cranch, 87; 3 Cond. Rep. 286. 10. The act of assembly of North Carolina of November, 1777, establishing offices for receiv ing entries for claims for lands, did not authorize entries for lands within the Indian boundary. The act of 1778 is a legislative declaration explaining and amending the former act; and no title is acquired by an entry contrary to those laws. Preston v. Browder, 1 Wheat. 115; 3 Cond. Rep. 508. 11. Under the acts of assembly of North Carolina, passed between 1783 and 1789, all entries, surveys, and grants of land set apart for the Cherokee Indians, are avoided, and no title can thereby be acquired to such lands. Danforth's Lessee v. Thomas, 1 Wheat. 155; 3 Cond. Rep. 524. 12. Where the plaintiff in ejectment claimed under a grant from North Carolina, comprehending the lands in question, and the defendant has been recorded. Taylor's Les-claimed under a junior grant, and a possession of seven years, which, by the law of Tennessee, constituted a bar to the action; to repel this defence, the plaintiff proved that the only marked corner of the grant under which he claimed was the beginning corner, and that all the corners except one, and nearly all the land were within the Indian boundary, the Indian title to which had not been extinguished seven years before suit brought; but the land in controversy did not lie within the Indian boundary: Held, that although the plaintiff was precluded by law from surveying the land granted to him within the Indian territory, yet the defendant was protected by the seven years' possession. M'Iver v. Ragan, 2 Wheat. 25; 4 Cond. Rep. 13. 6. On a trial in ejectment for lands in Virginia, the plaintiffs offered in evidence a number of entries of recent date, made by the defendants, within the bounds of the tract of land in dispute, designated as "Young's four thousand acres," and attempted to prove, by a witness, that Young, when he made the entries, had heard of the plaintiffs' claim to the land. The defendants then offered to introduce, as evidence, official copies of entries made by other and third persons since the date of the plaintiffs' grant, for VOL. I.-51 13. A grant raises a presumption that every prerequisite to its issuing was complied with, and a warrant is evidence of the existence of an 4 A |