The Nostra Signora de los Dolores. 1 Acton.

On this latter clause of the section the objection in point of law is intended to be raised, inasmuch as the requisitions of the statute have not nor in fact could not from particular circumstances be complied with. Upon this part of the case it is only necessary to state, that the proper place and time for the actual captor to have availed himself of this objection would have been in the court below, when the allegation of Captain Ayscough as joint captor was there filed; even then he might have availed himself of this act, the spirit of which, from its title, appears not to have in contemplation to increase the difficulties which joint captors often labor under from the contrivances of interested persons or the unavoidable accidents dependent. on nautical transactions. Many circumstances inseparable from the nature of a naval life, where parties must necessarily be subject to the command of superiors, whose duty it often is to prescribe to particular officers a line of duty or course of voyage from which they may not deviate, might render it impossible to comply in all cases of joint capture with the provisions of this act; but the same spirit

which dictated the act would naturally induce a Prize Court [*264] to make an exception in favor of a claim which had *only

been protracted or deferred beyond the usual time by such unavoidable circumstances. On the question of sight, therefore, this case will most probably be decided. A variety of evidence is adduced in the papers of this cause to prove and disprove the fact. The deposition of the master of the prize, and also of the mate, states simply she was captured off Savannah La Mania, in Jamaica, by the schooner Pike, Lieutenant M'Donald, commander, no other vessel of war being in sight at the time of the capture. The reason of this mistake will appear from examining the evidence of the other more circumstantial witnesses. Of those for the joint captor, Chapman avers he was prize-master of The Citizen, which sailed under convoy of The Goelan on the day of the capture, saw The Pike and two other schooners from one to five o'clock in the afternoon; The Pike when first seen was about four miles distant, and close in shore; The Goelan nearly four leagues; the two other schooners running down before the wind. At four or five several guns were fired by one of the three schooners. At this time The Goelan had hoisted American colors, and he was ordered by Captain Ayscough to do the same, for the purpose of deceiving The Pike, which the captain told him he supposed to be an enemy. The schooner that fired the guns hoisted a blue English ensign in the afternoon. This evidence is corroborated in every particular by the mate of The Citizen, who adds, that he saw The Pike make the capture, previous to which Captain Ayscough had warned the The Citizen to keep clear of The Pike, and

The Nostra Signora de los Dolores. 1 Acton.

immediately went in pursuit of her. A sailor on board the prize deposes, he saw at the time of the capture a brig which he believes to be The Goelan, about two leagues to leeward; there was a ship to windward, and the schooner Pike between both; [* 265 ] the ship standing in shore, the brig and other schooner standing off. The brig's intention, he thinks by her manœuvres, was to cut off the schooner, and the commander of The Pike, after boarding the prize said, in broken Spanish, the brig was a companion of his. In this statement he is borne out by the evidence of two other Spanish sailors, who add, that in an hour and half's sailing they must have been alongside the brig, and have been captured by her, thinking her to be an American. The Pike's commander said, on taking possession of the prize, had she escaped him she must have been captured by the brig to leeward, his companion. The other witnesses for the actual captor, four in number, and all sailors on board the prize, principally confine their evidence as to the circumstance of The Pike's bearing a red ensign at her main peak, and aver they were only apprehensive of The Pike's capturing them; one, however, admits there were apprehensions entertained of the ship to windward. Upon the positive evidence, therefore, of five witnesses examined in behalf of the joint captor, and the admissions of the evidence on the opposite side, there can be little doubt the brig alluded to was The Goelan, and in sight at the time of capture, and hence entitled to share.

Carr, same side, was requested by the court to reserve his observations for the reply.

We are not [* 266 ]

Adams and Stephen for the appellant. In appearing for the actual captor, we must in point of law derive considerable advantage from that situation. If our witnesses were merely negative, as has been stated, it would only be then that sort of evidence which the nature of our case will generally admit of. bound to establish a case; this is the duty of the counsel for the asserted joint captor; it remains for us to disprove it if established; if not, it falls by its own insufficiency to the ground. The onus probandi altogether lies on the claimant. It does not signify whether his claim is rebutted by direct or negative evidence. The strength of the actual captor's case is drawn from the weakness of the others; and if the respondent do not prove that the sight was evident and certain, there is an end of his case altogether. It was presumed that in the act of parliament quoted there was a substantive ground for excluding the respondent from availing himself of

The Nostra Signora de los Dolores. 1 Acton.

even a much stronger case than that now before the court. But upon this part of our case the court being of a different opinion, it becomes necessary to compare the conflicting evidence adduced by the parties, and decide upon the question of fact. In examining the evidence as to the fact, a disclosure takes place from the positive testimony of all who pretend to see the brig at the time of the chase, which gives rise to another question in point of law; for this vessel, all say, had American colors flying at the time, and was taken by these witnesses on board the prize for an American vessel. No intimidation, therefore, was given to the foe. Can, therefore, the claimant avail himself of the fact of sight, if even established, when he appears not to have contributed that assistance to the actual captor which forms one striking feature in the principle of law respecting sight, upon which a joint captor is entitled to share? Leaving, therefore, this question to the determination of the court, upon the fact of sight it is obvious that the council have rather endeavored to reason

inferentially that The Goelan must have been the brig men[* 267 ] tioned, and must *have been in sight from her situation, than proved by positive evidence that she actually was so. Scores, mate of The Citizen, admits his distance from The Goelan was twelve miles, yet speaks of having been warned by her to avoid the schooner, which proved to be The Pike; which vessel at the time. had, he erroneously states, a blue flag flying during the chase. Is it possible a communication of the danger, which Captain Ayscough apprehended from The Pike's being so near The Citizen, could take place at the distance of so many miles? Would it have been consistent with his duty, having then the charge of the trade, to permit an enemy to chase a vessel in sight, and yet continue a distant course, leaving The Citizen in a situation of very great peril? Captain Ayscough, in his answers to the allegation of Lieutenant M'Donold, says the very reverse; stating he saw the capture made, but was not then certain whether the captor was The Pike or his Majesty's schooner Barracanta, both these schooners being so very like as not to be distinguishable at any distance. The four sailors on board the prize say The Pike's flag was red. In each part of his testimony Scores is discredited by positive evidence, or the impossibility of the occurrence to which he positively swears. All the witnesses who speak of The Pike's bearing say the capture was made close in shore, and to the eastward of a high point of land, projecting into the sea a considerable distance, called Pedro Bluff, over which no vessel on one side could see a vessel on the other. The course of The Goelan was to the westward of this point, far to leeward. Under these circumstances it is too much to infer, because

The Nostra Signora de los Dolores. 1 Acton.

The Goelan was within seeing distance, that she therefore had sight; for the intervention of this, or different other headlands which are upon that coast, would have prevented [* 268 ] ships pursuing such different courses from having any sight whatever of each other; and the probability is, that the nearer such vessels were, the less chance there would be of their obtaining a mutual view. By referring to the chart, it must be admitted that vessels similarly situated as The Pike and Goelan are described at the time of capture, could not have been in sight of each other, but were intercepted by the intervention of the headland at the commencement even of the chase. Here it is necessary to observe upon the manner in which this claim came to be interposed, which is not a little extraordinary. The capture was made on the 11th November; the 24th the respondent arrived in Blue Fields Bay, where he continued three days; but, as he states, employed so actively in watering and refitting, that, notwithstanding his alleged knowledge of the capture, and having an interest in her condemnation, he could not spare time enough to send in his claim, though within a short. distance of Kingston. He was then ignorant which of the schooners had made the capture; but being soon after acquainted, through the newspapers, that it was The Pike had captured the prize, and falling in with her on the 6th December, he went on board her, to ascertain from the appellant whether he would admit his claim, alleging his having been in sight at the time, which being denied, he requested to inspect The Pike's log, to see whether any entry had been made. that day of The Goelan being in sight. The allegation of the appellant more fully details the transaction; adding that, when no such entry was found in the log, the respondent interrogated several of The Pike's crew, respecting the appearance of The Goelan during the chase, which they severally denied. The appel- [* 269 ] lant requested leave to go with him on board The Goelan, and examine his logs, which was done; and no entry appeared of any guns having been fired by any ship in sight that day, (although six had been fired for the purpose of bringing the prize to,) nor was there any entry respecting the capture in question in the log of The Goelan. In examining the log of The Pike, the respondent displays a confidence in the regularity and precision of the evidence which he might extract from it; the deficiency of such evidence is, therefore, to be taken most decisively against him, and as the case for the asserted joint captor is incomplete, the appellant is solely entitled to the prize in question.

Carr, in reply, objected that the allegation of the appellant had

The Patapsco. 1 Acton.

been adduced as proof generally, whereas in the former adjudication two articles only, out of several, had been admitted, and that for the purpose of obtaining the answers of the respondent thereto. These referred merely to his being at anchor in Blue Fields Bay, and having made inquiries on board The Pike. Taking even the log as evidence, it did not appear that the Bluff intervened between these vessels. Not one of the appellant's witnesses say, that any interruption was occasioned by the intervention of this headland, though the whole of this case seemed to rest upon that fact's being established. The witnesses on board The Citizen spoke decidedly as to these different vessels being all seen by her, and within seeing distance of each other. The Spanish sailors on board the prize mentioned a brig in sight. These being disinterested persons, much reliance might be reposed upon their testimony; such, at [* 270 ] least, was the usual practice of prize courts. And, from the body of evidence before the court, he considered his party could have no hesitation in resting the whole strength of his case on The Goelan's being the brig so repeatedly alluded to by most of the witnesses on either side.

JUDGMENT.

*

The court pronounced for the appeal, declared that the respondent had failed in substantiating his claim as joint captor, and condemned the vessel as prize to The Pike; but directed the respondent's expenses in both courts to be paid out of the proceeds.

PATAPSCO, Hall, master.

May 19, 1810.

National character of the settlements of the Isle of France and that of Batavia discussed. The captor's proofs of the illegality of a trade with these settlements, on the ground of their being of a colonial nature, where, in time of peace, neutrals were not permitted to trade generally, pronounced to be insufficient. Ship and cargo restored, the property appearing to belong as claimed. Captor's costs in both courts granted, in this and the remaining similar cases.

THIS was a leading case of several American vessels engaged in the same trade. The Patapsco sailed from Baltimore to Batavia, in the island of Java, where she procured a cargo of sugar, arrack, candy, and rattans, with which she cleared out for Baltimore, intend