Page images
PDF
EPUB

thing in possession which the civil law gave for care THE and labor bestowed upon it.

ADVEN

TURE, The question then occurs, is this a case of salvage ?

MASTER, On the negative of the proposition it is contended, that it is a case of forfeiture, and therefore not a case of salvage as against the United States—that it was an unneutral act to assist the enemy in bringing the vessel infra presidia, or into any situation where the rights of re-capture would cease, and therefore not a case of salvage as against the British Claimant.

But the Court entertain an opinion unfavorable to both these objections.

This could never have been a case within the view of the legislature, when passing the non-importation act.

The ship was the plank on which the ship-wrecked mariner reached the shore ; and although it may be urged that bringing in the cargo was not necessarily connected with their own return to their country, yet, upon ree flection, it will be found, that this also can be excused upon very fair principles. It was their duty to adhere strictly to their neutral character; but to have cast into the sea the cargo, the property of a belligerent, would have been to do him an injury by taking away that chance of recovery subject to which they took it into their possession. Besides, bringing it into the United States, did not necessarily pre-suppose a violation of the non-importation laws. If it came within the dccription of property cast casually on our shores, as we are of opinion it did, legal provision exists for disposing of it in such a manner as would comport with the policy of our laws. At last, they could but deliver it up to the hands of the government, to be re-shipped by the British Claimant, or otherwise appropriated under the sanction of judicial process. And such was the course that they pursued. Far from attempting any violation of the laws of the country, upon their arrival here they deliver it up to the custody of the laws, and leave it to be disposed of under judicial sanction. The

case has no one feature of an illegal importation, and : cannot possibly have imputed to it the violation of law.

THE

As to the question arising on the interest of the BriADVEN- tish Claimant, it would, at this time, be a sufficient anTURE, swer, that they who have no rights in this Court, cannot

urge a violation of their rights against the claim of the MASTER, Libellants.

But there is still a much more satisfactory answer: To have attempted to carry the vessel “ infra presidia" of the enemy, would, unless it could have been excused on the ground of necessity, have been an unneutrál act. But when every exertion is made to bring it to a place of safety, in which the original right of the captured would revive and might be asserted, instead of aiding his enemy, it is doing an act exclusively resulting to the benefit of the English Claimant.

It being determined to be a case of salvage, the next question is, as to the amount to be allowed. On this subject there is no precise rule; nor is it, in its nature, reducible to rule. For it must, in every case, depend upon peculiar circumstances, such as peril incurred, labor sustained, value decreed, &c. all of which must be estimated and weighed by the Court that awards the salvage. As far as our enquiries extend, when a proportion of the thing saved has been awarded, a half has been the maximum, and an eighth the minimum; below that, it is usual to adjudge a compensation in numero. In some cases, indeed, more than a half may have been awarded; but they will be found to be cases of very extraordinary merit, or on articles of very small amount. In the present case, the account sales of the cargo was near $16000; and we are of opinion that the one half of that sum will be an adequate compensation.

[ocr errors]

The next question arises on the application of the residue. On this point, the Court is led to a conclusion by the following considerations.

At the arrival of the vessel in the United States, the original British owner would, unquestionably, have been entitled to the balance. The state of war, however, at present, prevents his interposing a claim in the Courts of this couutry. But as this property was found within the United States at the declaration of war, it must stand on the same footing with other British property similarly situated. Although property of that de$cription is liable to be disposed of by the legislative

THE

power of the country, yet, until some act is passed upon the subject, it is still under the protection of the law, and ADVENmay be claimed after the termination of war, if not TURE, previously confiscated. We will, therefore, make such order respecting it, as will preserve it, subject to the MASTER. will of the Court, to be disposed of as future circumstances shall render proper.

As to the mode of distributing the amount of the sal vage, the Court have concluded to adopt an arbitrary distribution ; because there exists no positive rule on that subject. They would have adopted the rules of the prize act relative to cases of salvage, had the circumstances of the case admitted of its application.

This Court orders and decrees, that the decree of the Circuit Court of Virginia, in this case, be reversed; that the costs and charges be paid out of the proceeds of the sale; that the one half of the balance be adjudged to the Libellants, to be divided into thirteen and a half parts, three of which shall be paid to the captain, two to the supercargo, two to the chief mate, one and a half to the second mate, and one to each of the seamen. And that the balance be deposited in the bank of Virginia, to remain subject to the future order of the Circuit Court.

JOHN GREEN V. JOHN LITER AND OTHERS.

THIS was a writ of right brought by Green, the

The Circuit Demandant, against the tenants, to recover seizin of

Courts of the a large tract of land lying in Kentucky, and set forth U. S. have juin the count. The writ of right was sued out under risdiction in the act of the Virginia assembly, entitled “an act for where the proreforming the method of proceeding in writs of right.”perty demand

ed exceeds

$500 in value; At the trial in the Circuit Court for the Kentucky and if, upon the

trial the dedistrict, several questions arose upon which the Court was divided; whereupon those questions were certified ver less; he is for the opinion of the Supreme Court. They are as not to be ata

lowed costs; follows :

but, at the disa

mandant reco

GREEN

1st. Has the Circuit Court of the United States ju

risdiction in a writ of right, where the land claimed by LITER the Dewandant is above the value of $ 500, but the tene& OTHERS. ment held by the tenant is of less value than $ 500 ?

At common

[ocr errors]

manded. It

cretion of the 2d. Can the Demandant join in the writ and count Court, may be several tenants claiming under several distinct, sepaadjudged to pay costs.

rate and independent original titles, all of which inter

fere with the land of the Demandant? If he can, must law, a writ of right will not be demand of them the tenements they severally hold, lie, except

or may he demand a tenement to the extent of his own against the tenant of the

title? If it comprizes a part not claimed or held by any frcehold de of the said tenants, may he demand, in his count against there are sev

the several tenants, his own tenement, or must he deeral tenants mand of each tenant the tenement he severally holds ? claiming several parcels of land by distinct

3d. Can the tenant, under the act of the Virginia astitles, they can- sembly for reforming the method of proceeding in writs joined in one

of right, plead in abatement either the plea of nonwrit; and if tenure, joint tenancy, sole tenancy, several tenancy, may plead in or never tenant of the freehold, or any of them, or othabatement of er pleas in abatement necessary to his case ; or is he the writer compellable to join in the mise in the form prescribed

demandant demands a

by the said act? If he can, when or at what stage of the gainst any te, proceedings ? If he cannot, may he give it in evidence than he holds, on the mise joined ? he may plead

åth. May the tenant, under the said act, plead speto the parcel not holden ; cially any matter of bar, or must he join the mise, withbut the writ

out other plea, in the form prescribed by the said act? shall abate only as to the parcel where

5th. Can a Demandant who has regularly obtained of non-tenure is pleaded and a patent from the land office of the state of Virginia admitted or for the land in contest, under the act of the Virginia proved. Under the act

legislature, passed in the year 1779, commonly styled of Kentucky, the land law, maintain a writ of right, under such pato amend

tent, against a person claiming and holding possession process in chancery and under a younger patent from the said state, without common law, having first taken the actual possession of the land, leopar, many under his patent, held by the tenant? If he can mainthough he tain a writ of right without such proof in the general, prove only

can he do it where his right of entry is barred by an acpart of the claim in his tual adverse possession of twenty years ? declaration ; but it does not

6th. Is the eldest patent, obtained, as aforesaid, for

110n-tenure as

[ocr errors]

enable him to

the land in controversy, sufficient proof of the best. GREEN mere riglit; or can the Demandant be put on the proof that, in the incipiency, and in the different steps ne LITER cessary to complete his title, he has complied with the & OTHERS requisites prescribed by the acts, the one entitled “an act for adjusting and settling the titles of Claimants to join parties in unpatented lands under the present and former govern- could not be ment, previous to the establishment of the commonwealth joined at the land office," and the other,"an act for establishing a land common law. office and ascertaining the terms and manner of granting Virginia of waste and unappropriate lands," and the subsequent laws 1786, reformof Virginia on the same subject, in force at the time of the of proceeding erection of the district of Kentucky into a separate state ? in writs of

right, did not

vary the rights 7th. If the Demandant is not compellable to shew any or legal predithing beyond his patent, can the tenant holding the cament of the younger patent be permitted to impeach the Deman-existed at the dant's patent, to shew the incipiency and completion of common law, his own title, and the relative merits of his own and the fore changer Demandant's title ?

the nature and effect of the

pleadings; and sth. Can the Defendant defend himself by shewing notwithstandan older and better existing title than the Demandant's, ing that act,

the tenant shall in a third person ?

still have the

full benefit of 9th. Where several tenants, claiming in severalty, pleas in abate

the ordinary are joined in a writ of right, should the finding of the ment

. The jury be several of the mere right between the Deman-clause of the act dant and each tenant, or may it be a general finding that the tenant that the Demandant hath the most mere right?

at the trial, may, on the

general issue, 10th. The commonwealth having first made and grant-give in evi

dence any mated a patent to the Demandant, and afterwards, by her

ter which patent, granted a part of the same land to the Defen- might have dants, who entered and obtained the first possession, the

been specially

pleaded, is conDemandant afterwards entered and took possession, un- fined to matder his first grant, of that part of his land not within the ters in bar. patent of the first grantee-who has the best mere right of Virginia of to the land, where the patents conflict, outside of the ac- 1786, the ten: tual close of the last grantee ?

ant may, at his election, plead

any special 11th. Will an entry upon part, and taking the esplees

matter in bar

in a writ of under the elder grant from the commonwealth, and ma- right, or give king claim to the whole land included within the bounds it in evidence of the elder grant, authorise the Demandant to maintain joined. The

« EelmineJätka »