Del Gol v. Arnold

Syllabus

A LIBEL was filed in the Diftrifl Court of South Carolina, by the Defendant in error, againft Del Col, and others, the owners of a French privateer called La Montague, and of the íhip Jndujlry and her cargo, a prize to the ptiva-teer, lying in the harbour of Charleflon, which the Libellant had caufed to be attached. The cafe appeared to be briefly this The privateer had captured, as prize, on the high feas, an American brig called the Grand Sachem, commanded by Ebenezer Baldwin, and owned by the Defendant in error. At the time of taking pofleffion of th'e brig, a fum of 9993 dollars was removed from her into the privateer, a prize-mafter and leveral mariners weré put on board of her, and they were directed to fleer for Charleflon. . Juft, however, as they hove in fight of the light-houfe, the Terpfichore, a Britijh frigate, captured the privateer, and gave chace to the prize:' whereupon the prize-mafter run her into fhoal • water, and there fhe was abandoned by all on board, except a failor originally belonging to her crew, and a paflenger. In a íhoft time, fhe drove on fhore, was fcutled and plundered. When the Mar-, ihal came, with procefs agairift the brig, fhe was in the joint pofleffion of the Cuftom-houfe Officers, and the privateer’s men; the latter of whom prevented the execution of the pro-cefs. The Indujlry and her cargo were then attached by the •Libellant, and an agreement was entered into between the parties, that they fhould be fold, and thb proceeds paid into court, to abide the ifliie of the fuit.

On the evidence, it appeared, that the Grand Sachem, had been engaged in afmuggling trade at 'New Orleans, the Spanijh Main, &c. and for the purpofe of carrying it on, fhe had procured a regifter in the name of a Spanijh fubjeél, and'failed under Spanijh colours. Befides other fufpicious qircumftances, Ihe had oh board, at the time of he(r capture, a variety of ac

counts defcribing her as Spanijh property; and a trunk containing her papers (among which, it was alledged, there was a Spanijh regifter) had beencollufively delivered up to the own-, er, the Defendant in error, by one of the fai'lors. The money removed from her, and taken in the privateer by the Bri-tijh frigate, had been condemned in Jamaica.

The Diftrift Court pronounced a decree, ill favor of the Libellant, for the'fum of 33⅝329 dollars 87 cents (the full value ■ of the Grand Sachem, and her cargo) with" intereft at 10 per cent, from the 8th of Auguft, 1.795, the day of capture; declared “ that the proceeds of the ihip Indujiry and her cargo, attached in this caufe, beheld anfwerable V> that amount;” and diredted, that the Defendant in error .ihould enter into a ilipulation to account to the Plaintiffs in error, for the money condemned as prize to the Britijh frigate, or any part of it, that he might recover, as .neutral property. This decree was affirmed, in the Circuit Court, and thereupon the prefent writ of error was inilituted.

The cafe was coniidered in four points of view:—iff. Whether there was fufficient probable caufe for feizing and bringing the Grand Sachem into port for further examination, and adjudication ? 2d. Whether, if there was fuch fufficient caufe, the captors can; at all, be made liable for the confequent injury and lofs ? 3d. Whether if the immediate captors, who run the vefiel into íhoal water,- and fcutled her, are refponfi-ble', that refponfibility can be devolved on the owners of the privateer, who bad not authorifed, or contributed to the rnifconduct ? And - 4th. Whether the. Indujiry and her cargo could, before condemnation, be attached, and made liable in this fuir, as the property of the captors?

The firft and fecond points were argued, at the laft Term, by Dallas and Reed (of South Carolina) for the Plaintiffs in error, .and by Pringle (of South Carolina) for the Defendant: and the third and fourth points were argued at the prefent Term, by the fame, counfel for the Plaintiffs in error, and by Ingerfoll and Lewis for the Defendant.