1817. The Mary crew, because no resistance nor escape; and the British master could clearly not have maintained a claim for salvage in the courts of his own country had the Paul Jones turned out to be a British privateer. Mr. Webster, contra. This is a case of voluntary relinquishment of the prize; and even if it was produced by terror of a supposed enemy, that will not make it involuntary. The case of the Lord Nelson does not determine the present case; but Sir William Scott there puts the very case now before the court, and decides it by asking, "Suppose, therefore, that after this voluntary abandonment, the ship had been met with by some French cruiser, and that by means of jury-masts, they had succeeded in carrying her into a French port; can there be any doubt that she would have been prize to the second captor?" In the case of the Ann, which was a question of jurisdiction in a revenue cause,. the seizure being abandoned before adjudication, this court illustrate their opinion by analogy to the prize law, holding, that capture gives no authority to proceed to adjudication, if abandoned before judicial proceedings are commenced. So, also, in the case of the Astrea, it was determined, that an interest acquired by possession is devested by the loss of possession, from the very nature of a title acquired in war. The case of the Adventure is likewise in point. There was no fraud on the part of the Paul Jones. She had a right to chase under any colours; g 9 Cranch, 289. h 1 Wheat. 125. i Ib. note (f.) but she neither chased nor fired under enemy's colours: whilst the prize showed no colours, and therefore invited pursuit; and was found in the possession of her original British master, and therefore authorized detention. She was not infra præsidia whilst lying in Wheeler's Bay; but even supposing she had been, if she was afterwards abandoned by her original captor, the Paul Jones had a right to take possession. The prize master did not think it worth while to risk being taken prisoner, and there fore abandoned his prize. Mr. Jones in reply. The case supposed by Sir William Scott, in delivering his judgment in the Lord Nelson, is of a voluntary abandonment, and not one produced by the application of force or terror. In the case of the Ann, this court, though incidentally describing the general doctrine, adhere to their accustomed accuracy and precision of language. "A voluntary abandonment" is the phrase used by the learned judge, who delivered the opinion of the court; and he proceeds to state, "It is not meant to assert that a tortious ouster of possession, or fraudulent rescue or relinquishment after seizure, will devest the jurisdiction." The precedent of the Astrea does not apply. In that case there was a capture and recapture, and a second recapture; but no question whether the abandonment by the first captors was voluntary or not. The case of the Adventure was not a question of derelict; but whether the belligerant may invest a neutral with his rights at sea, in fraud of the contingent right of recapture by the 1817. The Mary. 1817. other belligerant. The question here is not whether The Mary. fraud was used, but whether force was used. The prize crew supposed they were surrendering to British captors: but the Mary was not in a situation to be captured by a cruiser of the United States; she was not derelict, but lying in a roadstead, which is a præsidium, though not guarded by forts and castles. Feb. 14th. Mr. Justice JOHNSON delivered the opinion of the court. We are of opinion that the facts stated, in this appeal, make a clear case of tortious dispossession on the part of the Paul Jones. The privateer Cadet had, with great gallantry, captured the Mary, and been in possession of her part of a night and day. The prize was close in upon the American coast, and making for a port which was open before her. It was not until the superior sailing of the Paul Jones made it manifest that the prize must be cut off from this port, and until she had been repeatedly fired upon, that the prize crew abandoned her. There exists not a pretext in the case that this abandonment was voluntary, or would have taken place but for the hostile approach of the Paul Jones. Whether the vis major acted upon the force or the fears of the prize crew is immaterial, since actual dispossession ensued. But it is argued that the Paul Jones showed American colours; the Mary ought not therefore to have feared her: the Mary showed no colours, she, therefore, invited pursuit; and, finally, that the Paul Jones found her in the actual possession of her original master, and, therefore, could not have done otherwise than detain her. We think otherwise. It was more probable that an enemy would show false than true colours. The circumstance of the Mary standing in for a friendly shore, was less equivocal evidence of her character than the exhibition of colours; and, after boarding the Mary, and learning that she was a prize to the Cadet, it was the duty of the captor to have repaired the injury he had done, and, either by making signals, sending a boat on shore, or a message by the boat that did come off, to have recalled the prize crew of the Cadet. But, instead of this, she instantly mans the prize, bears away from the harbour, which was close under their lee, and, by carrying English colours until out of sight, completes the conviction of the prize crew that the re-capture was by an enemy. We are of opinion that the decision of the circuit and district courts should be reversed; that the prize should be adjudged to the Cadet; and the case remanded for the assessment of reasonable damages in favour of the Cadet. But, considering that the prize arrived in safety, and probably in a more secure harbour than that for, which she was sailing, when seized by the Paul Jones, (although it is certainly a case for damages,) we are of opinion the damages should be moderate. Sentence reversed." a Mr Justice STORY did not sit in this cause. 1817. The Mary. 1817. The San (INSTANCE COURT.) The SAN PEDRO-Valverde, Claimant. Under the judiciary act of the 24th of September, 1789, ch. 20., and the act of the 3d of March, 1803, ch. 93., causes of admiralty and maritime jurisdiction, or in equity, cannot be removed, by writ of error from the circuit court for re-examination in the supreme court. The appropriate mode of removing such causes, is by appeal: and the rules, regulations, and restrictions contained in the 22d and 23d sections of the judiciary act, respecting the time within which a writ of error shall be brought, and in what instances it shall operate as a supersedeas;-the citation to the adverse party, the security to be given by the plaintiffs in error for prosecuting his suit, and the restrictions upon the appellate court as to reversals in certain enumerated cases, are applicable to appeals under the act of 1803, and are to be substantially observed; except that where the appeal is prayed at the same term when the decree or sentence is pronounced, a citation is not necessary. ERROR to the superior court of the Mississippi territory. This was a libel of information filed in that court, against the schooner San Pedro and cargo, alleging, 1st. That the San Pedro departed, on the 1st February, 1813, from Mobile for the island of Jamaica, a colony of Great Britain, in violation of the embargo act of the 22d December, 1807, and the several acts supplementary thereto; of the non-intercourse act of the 1st of March, 1809; and of the laws of the United States. 2d. That sundry goods, wares, and merchandise were imported in the San Pedro, inte |