The Arrogante Barcelones. 7 W.

them to the port of Juan Griego, in the Island of Margaritta, where proceedings were instituted, under which the ship and cargo were condemned in the court of admiralty as Spanish property, and good prize of war, and purchased by the claimant at public auction. The copy of the sentence produced in evidence was certified by the notary or secretary of marine, and his signature was verified by the certificate of Lino Clemente, deputy of the Republic of Colombia to the United States, but who had not then been received in that capacity by our government. Decrees of restitution to the [498] original Spanish owners were entered, pro formâ, in the district and circuit courts, and the cause was brought by appeal to this court.

Winder, for the appellant and claimant.

Hoffman and Harper, contrà.

[ * 518 ]

*JOHNSON, J., delivered the opinion of the court.

The offence proved upon Almeida, in this case, is one of a very aggravated nature. He not only violated the neutrality of this government, but effected his purpose by practising a flagrant fraud, either upon his crew or upon the revenue officers of the port of Baltimore; or, perhaps, partially upon both. Every thing in the case proves that the sealing voyage round Cape Horn was a mere pretext; and if it be true that the crew were kidnapped under that pretext, and forced into belligerent service after getting to sea, it is a remarkable instance of bold and successful imposition. But who can believe it? The truth unquestionably is, that the crew, with perhaps the exception of the few who were put, in irons, understood perfectly the nature of the enterprise they were embarking in, and were deceived into the belief that their affected ignorance, or the impudence of the fraud, would screen them from the penalties of the laws which forbade their entering into belligerent service.

It cannot, then, be questioned that Almeida now appears before us in the character of a flagrant offender against the laws and neutral obligations of this country. And there is no shadow of a ground for hesitating to apply to this case the established rule of this court, in cases of illegal outfit, unless it be the condemnation of this vessel and cargo in the court of Margaritta.

This court will, for the present, waive all expression of its opinion on the questions raised upon the validity of that condem[*519] nation, or the sufficiency of the document produced to

prove it. We will put our decision upon a single and in

The Monte Allegre and the Rainha de los Anjos. 7 W.

dependent ground, that the view of this court, with regard to all such cases, may henceforth be distinctly understood.

We find the captured property in the hands of the offender, and hold it to be immaterial through what circuity of changes it has come back to him. It is not for him to claim a right springing out of his own wrong. In the hands of a third person, a valid sentence of condemnation, properly authenticated, would present a very different view of the subject. The offender's touch here restores the taint from which the condemnation may have purified the prize. Although a purchaser without notice, may, in many cases, hold his purchase free from an interest with which it was chargeable in the hands of the vendor, yet it cannot return into the hands of that vendor without reviving the original lien. Nor will courts of justice ever yield the locus standi in judicio to the suitor, who is compelled to trace his title through his own criminal acts. Decree affirmed.

THE MONTE ALLEGRE and the RAINHA DE LOS ANJOS. The Portuguese Consul-General, Libellant.

7 W. 520.

Restitution to Portuguese owners decreed, the property having been captured in violation of our neutrality laws.

APPEAL from the circuit court of the United States for the district of Maryland. The facts appear in the opinion of the court.

Winder, for the appellant.

D. Hoffman, contrà.

MARSHALL, C. J., delivered the opinion of the court.

The Monte Allegre was captured by the private armed vessel called La Fortuna, cruising at the time under a commission from the chief of the Oriental Republic. She was completely fitted out, equipped, and manned, in Baltimore, from which port she sailed on her first cruise in December, 1816; owned and commanded by citizens of the United States; but commissioned by the government of Buenos Ayres. She sailed again on her second cruise in August, *1817, from the port of Baltimore. This cruise [*521] terminated at Buenos Ayres, where she was in part dismantled, some of her rigging and arms being deposited in a storeship which lay near her. The crew also were discharged. After lying in port four or five weeks she sailed on her third cruise, having the same armament with which she sailed from Baltimore, and

Crocket v. Lee. 7 W.

Her commander was

about twenty or thirty of the same crew. changed, but was still a citizen of the United States; and she sailed under a commission from the Oriental Republic. On this cruise The Monte Allegre was taken, and sent into the port of Baltimore, where she was libelled by the consul-general of Portugal. She was claimed by William Foster, the prize-master, in behalf of the Oriental Republic, who alleged that while she lay in the port of Buenos Ayres she was purchased by the government of the Banda Oriental. The reality of this sale constitutes the only question which can arise in this case.

The testimony in support of it is found in the depositions of James Brown, James Williams, William Towson, and Alexander Towson. They mention the partial dismantling of the vessel, and speak of a report that she was sold, but they give no positive infor mation on the subject, nor did they even hear to whom the sale was made. This testimony would weigh very little were it even uncontradicted. But the regular transmission of her prizes to Baltimore, her returning to that port at the termination of her cruise, the depo

sitions taken to show that the original proprietors had not * 522] parted with their interest, are proofs of a continuing American ownership, which are entirely conclusive. There can, then, be no doubt but that the captures made by The Fortuna are in violation of the laws of the United States, enacted for the preservation of our neutrality,' and that they ought to be restored when brought within our territory.

The Rainha de los Anjos was a Portuguese vessel, captured by The La Fortuna, in the same cruise in which she captured The Monte Allegre. The cases are, in all material respects, the same. Sentences affirmed, with costs.

9 W. 616; 11 W. 429.

CROCKET V. LEE. SAME v. Same.

7 W. 522.

If a title paper is set out in the pleadings in equity, any defect apparent on its face may be taken advantage of without averring it in pleading; but if the defect relied on depends on extraneous facts they must be averred, otherwise the court will not examine the question.

APPEAL from the circuit court of the United States for the district of Kentucky.

12 Stats. at Large, 383, 497; 3 Ib. 370, 447.

Crocket v. Lee. 7 W.

Sheffey, for the appellant.

Clay, for the respondent.

[*523]

• MARSHALL, C. J., delivered the opinion of the court. These causes relate to the same title, and depend on the same question. It is the validity of a certificate for a settlement right granted to Angus Cameron, and of the entry thereof in the surveyor's office.

The certificate is in these words:

-

Angus Cameron this day claimed a settlement and preemption in the district of Kentucky, on account of residing in the country twelve months before the year 1778, lying at the head right-hand fork of Welles's branch, extending southeast to the head of a small run that empties into the north fork of Licking, including the spring on the head of both branches, about one and a half miles above the war path that crosses the north fork. Satisfactory proof being made to the court, they are of opinion that the said Cameron has a right to a settlement of 400 acres of land, to include the above location, and the preemption of 1,000 acres adjoining, and that a certificate issue accordingly."

* The entry in the surveyor's office conforms to the loca- [* 524 ] tion expressed in the certificate.

The right of Cameron, both to his settlement and preëmption, was regularly conveyed to the appellant, in whose name patents have been obtained.

The appellee claims under junior entries, for which patents have been issued, younger than the appellant's patent on the preemption warrant, but elder than his patent on the settlement right. The appellant, therefore, filed his bill to obtain a conveyance for the land covered by his settlement right, the legal title to which was in the appellee; and the appellee filed his bill to obtain a conveyance for the land covered by the appellant's patent on the preëmption right, to which he claimed the equitable title.

Pending the controversy, Lee purchased in the right of a person claiming under a patent older than either of those under which Crocket claimed; but as this patent was founded on a junior entry, the validity of Cameron's certificate was still the question on which the whole case depended.

In the circuit court, Crocket's bill was dismissed; and, in the other suit, he was decreed to convey to Lee the land contained in his patent for Cameron's settlement right. The decrees were founded entirely on the opinion that Cameron's location was too vague to be

Crocket v. Lee. 7 W.

supported. In the circuit court, the cause turned almost entirely on this point, and the greater part of the testimony is taken with a view to it. If the validity of Cameron's location be sustained, Crocket

must succeed, because his right is prior in time, and supe[*525] rior in dignity, to any title conflicting with it. If Cameron's entry be invalid, then the decrees are right, either because Young's entry is good or because the legal title was in Lee, when they were made.

The testimony which has been taken in these causes certainly is very strong in support of the decrees of the circuit court; but the counsel for the appellant contends that so much of this testimony as respects the vagueness of Cameron's location must be disregarded, because neither its vagueness nor its certainty has been put in issue. Lee has not averred in his bill, nor alleged in his answer, that this location is vague, nor has he anywhere, or in any manner, questioned its validity.

The principle advanced by the appellant's counsel cannot be controverted. No rule is better settled than that the decree must conform to the allegations as well as to the proofs in the cause. The location being set out in the pleadings, the court can undoubtedly notice any intrinsic apparent defect. If it be void in itself no testimony can sustain it, and it would be deemed void on a demurrer to the bill. But if it be not void in itself, if its validity depends upon facts to be proved in the cause, then its validity ought to be put in issue.

The counsel for the appellee does not directly controvert this principle, but endeavors to withdraw his case from its operation, by contending that terms are used in the pleadings which are equivalent to a direct allegation that Cameron's location is too vague to be

sustained.

1

[ *526 ] If in this he is correct, the consequence he draws * from it will be admitted; for it will certainly be sufficient, if the matter to be proved be substantially alleged in the proceedings. How, then, is the fact?

In his answer to Crocket's bill, he says that he does not "admit that the survey has been made agreeable to location or to law."

This allegation certainly questions the survey. If it vary from the entry, if it be chargeable with any fatal irregularity, if it be in any respect contrary to law, such defects may be shown, and the party may avail himself of it to the extent justified by his testimony and by the law. But this allegation is confined to the survey. It does not mount up to the location, nor does it draw that into question. It gives no notice to Crocket that his entry was to be controverted.