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The Experiment. 8 W.

cannot, by law, claim a hearing under the Judiciary Act of September 24, 1789, c. 20, s. 26.

All which is directed to be certified to the circuit court of the United States for the first circuit and district of Maine.

THE EXPERIMENT.

8 W. 261. The abuse of a commission by making a collusive capture does not render the commission

void, but the captors acquire no title to the prize. Each case of alleged collusion is to be tried on its own circumstances; but it is one of the

circumstances to be noticed by a court of admiralty, that another capture, made by the same privateer in the same cruise, has been pronounced collusive.

Appeal from the decree of the circuit court of the United States for the district of Massachusetts.

Webster, for the appellants.

Pitman, for the United States.

[ * 263 ] * STORY, J., delivered the opinion of the court.

. This is a prize cause, brought by appeal from the circuit court of Massachusetts, affirming, pro forma, the decree of the district court of Maine. The sloop Experiment, and cargo, are confessedly British property, and were captured by the privateer Fly, during the late war, and brought in port, and proceeded against by the captors in the proper court, for the purpose of being adjudged lawful prize. No claim was filed in behalf of the captured; but the United States interposed a claim, upon the ground that the capture was fraudulent and collusive, and the cargo was introduced into the country in violation of the non-importation acts then in force,

which prohibited the importation of goods of British manu[ * 264 | facture, * as the goods comprising this cargo certainly were.

Upon the trial in the court below, the claim of the United States was sustained, and the capture being adjudged collusive, a condemnation was decreed to the government. From that decree the captors have appealed to this court; and the cause now stands for judgment as well upon the original evidence, as the further proofs which have been produced by the parties in this court.

The privateer is the same whose conduct came under consideration in the case of The George, reported in 1 Wheat. Rep. 408, and 2 Wheat. Rep. 278, and was there adjudged to have been collusive. The present capture was made during the same cruise, by the same The Experiment. 8 W. crew, and about six days only before the capture of The George. Under an order of the court, the original papers and proceedings in the case of The George, have been invoked into this cause; and after a long interval, during which the parties have had the most ample opportunities to clear the case of any unfounded suspicions, the decision of the court upon the arguments at the bar, is finally to be pronounced.

At the threshold of the cause we are met by the question, whether a party claiming under a commission which he has obtained from the government by fraud, or has used in a fraudulent manner, can acquire any right to captures made in virtue of such commission. Undoubtedly, a commission may be forfeited by grossly illegal conduct; and a commission fraudulently obtained is, as to vesting the interests of prize, utterly void. But a commission may be lawfully obtained, although * the parties intend to use it [ * 265 ] as a cover for illegal purposes. It is one thing to procure a commission by fraud, and another to abuse it for bad purposes. And if a commission is fairly obtained, without imposition or fraud upon the officers of government, it is not void merely because the parties privately intend to violate, under its protection, the laws of their country. The abuse, therefore, of the commission, is not, per se, evidence that it was originally obtained by fraud and imposition. The illegal acts of the parties are sufficiently punished by depriving them of the fruits of their unlawful enterprises. A collusive capture conveys no title to the captors, not because the commission is there. by made void, but because the captors thereby forfeit all title to the prize property.

And, after all, while the commission is unrevoked, it must still remain a question upon each distinct capture, upon the evidence regularly before the prize court, whether there be any fraud in the original concoction, or in the conduct of the cruise. We cannot draw in aid the evidence which exclusively belongs to another cause, to fix fraud upon the transaction, unless so far as, upon the general principles of prize proceedings, it may be properly invoked. , The present case, then, must depend upon its own circumstances.

It cannot, however, escape the attention of the court, that this privateer has already been detected in a gross case of collusive capture, on the same cruise, and under the same commission. This is a fact, of which, sitting as a court of * admiralty, [ * 266 ] we are bound to take notice; and it certainly raises a presumption of ill faith in other transactions of the same parties, which can be removed only by clear evidence of honest conduct. If the circumstances of other captures during the same cruise, are such as

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The Experiment. 8 W. lead to serious doubts of the fairness of their character, every presumption against them is greatly strengthened ; and suspicions once justly excited in this way, ought not to be easily satisfied. The captors have had full notice of the difficulties of their case, and after an order for further proof, which should awaken extraordinary diligence, they cannot complain that the court does not yield im. plicit belief to new testimony, when it comes laden with grave contradictions, or is opposed by other unsuspected proofs.

Many of the circumstances which were thought by the court to be entitled to great weight in the decision of The George, have also occurred in the present case. The original equipment, ownership, shipping articles, and conduct of the cruiser, are of course the same. The stay at Machias, the absence of Lieutenant Sebor, the very suspicious nature of his journey, the apparent connection of that journey with persons and objects in the immediate vicinity of the place where the voyage of the prize commenced, are distinctly in proof. The bad equipment of the prize, her indifferent condition, and small crew for the voyage, the nature of her cargo, and the flim

sy pretences set up for the enterprise, in the letters on board, [ * 267 ] are circumstances of suspicion, quite as strongly made out

as in The George. The conduct of the prize during her ostensible voyage was still more striking. She was far out of the ordinary course of the voyage, without any necessity, or even plausible excuse. She chose voluntarily to sail along the American coast, out of the tract of her voyage, even at the moment when she affected to have notice that The Fly was on a cruise; and she ex. posed herself to capture, in a manner that can scarcely be accounted for, except upon the supposition of collusion. The pretence set up for this conduct, is exceedingly slight and unsatisfactory. The circumstances of the capture, too, as they come from the testimony of some of the captors, as well as from a disinterested witness, are not calculated to allay any doubt. Here, as in The George, all of the prize crew, excepting one, were dismissed without any effort to hold them as prisoners, and without any apparent reason for the dismissal. And if the testimony of one of the captors is to be believed, there is entire proof that the prize was long expected, and came as a known friend under preconcerted signals. It may be added, that the testimony of the captors is in some material respects inconsistent; and if the testimony of two disinterested and respectable witnesses is to be credited, the master of the prize, in opposition to his present testimony, admitted, in the most explicit manner, that the capture was collusive.

We do not think that it would conduce to any useful purpose to

Spring v. South Carolina Ins. Co. 8 W.

review the evidence at large. It appears to us to be a case, where the circumstances * of collusion are quite as strong, if [ * 268 ] not stronger, than in The George. And we are, therefore, of opinion, that the decree of condemnation of the prize and her cargo, to the United States, ought to be affirmed, with costs.

Seth SPRING AND Sons, Appellants, v. The South Carolina IN

SURANCE COMPANY, Gray and Pindar, William Lindsay, and John Haslett, Respondents.

8 W. 268. An assignment of a policy of insurance, will entitle the assignee to receive from the underwriters the amount insured in case of a loss. It is not necessary that the assignment should be accompanied by an actual delivery of the policy, to make a title against one who is not a bona fide purchaser. Upon a bill of interpleader, filed by the underwriters against the different creditors of an insolvent debtor, claiming the fund proceeding from an insurance made for account of the debtor, some on the ground of special liens, and others under the assignment, the rights

of the respective parties will be determined. But, on such a bill. those of the co-defendants who fail in establishing any right to the fund, are not entitled to an account from the defendant, who shows himself to be the assigneo

of the policy, of the amount and origin of his claims. On a bill of interpleader, the plaintiffs are in general entitled to their costs out of the fund.

Where the money is not brought into court they must pay interest upon it. *An insurance broker is entitled to a lien on the policy for premiums paid by him [ * 269 )

on account of his principal; and though he parts with the possession, if the policy afterwards comes into his hands again, his lien is revived, unless the manner of his parting with it manifests his intention to abandon the lien. In such a case, an intermediate assignee takes cum onere. But in the case of other liens acquired on the policy, if it be assigned, bonâ fide, for a valu

able consideration, while out of the possession of the person acquiring the lien, and after. wards return into his hands, the lien does not revive as against the assignee. Evidence that a subscribing witness to a deed had been diligently inquired after, having

gone to sea, and been absent for four years, without having been heard from, is sufficient to let in secondary proof of his handwriting.

APPEAL from the circuit court of the United States for the district of South Carolina.

This was a bill of interpleader, filed by the South Carolina Insurance Company in the court below, on the 25th of April, 1816, against the appellants, and Gray and Pindar, William Lindsay, and John Haslett, praying that they might file their answers, and interplead, so that it might be determined to whom the proceeds of a certain policy of insurance should be paid. It appeared by the pleadings, and the evidence in the cause, that this policy had been made on the 6th of May, 1811, by the respondents, the South Carolina Insurance Company, upon a vessel called The Abigail Ann, then lying at Savannah, on a voyage to Dublin, or a port in St. George's

Spring v. South Carolina Ins. Co. 8 W.

Channel, for account of John H. Dearborne, and the respondents, Gray and Pindar, the latter of whom were merchants residing at Charleston, South Carolina, and at that time part-owners of the

ship, but on the 27th of May, 1811, sold their interest [ * 270 ) therein *to Dearborne. On the 5th of July, 1811, the

vessel sailed on the voyage insured. It appeared, that the respondent, Lindsay, as the agent of the parties, had procured this policy to be underwritten. It also appeared, that Lindsay had delivered the policy to Gray and Pindar, for the use of Gray and Pindar, and Dearborne, without at the same time expressly claiming any lien upon it.

After the sailing of The Abigail Ann, Dearborne, and Gray and Pindar, jointly purchased and loaded another ship, called The Levi Dearborne, of which vessel and cargo Dearborne owned two thirds, and Gray and Pindar one third. In September, 1811, this vessel sailed from Savannah for Europe, and Dearborne went in her. Before sailing, D. had drawn bills on England, some of which were indorsed and negotiated by Lindsay, which were returned protested for non-acceptance, and Lindsay was compelled to pay them. Haslett also made advances to Dearborne, and took his bills on England, secured by a bottomry bond on the ship Levi Dearborne. These bills also returned protested.

Before Dearborne left Savannah, certain misunderstanding arose between him and Gray and Pindar, which it was agreed should be referred to arbitrators. On the 21st of September, 1811, the arbitrators, and one Harford, as umpire, awarded that Gray and Pindar

should execute a bill of sale of the ship Abigail Ann to Dearborne, · and deliver to him the policy of insurance thereon, without unneces

sary delay. Before he sailed, Dearborne directed Harford [ * 271 ) to transmit to his wife, in the district of Maine, to the

care of Seth Spring and Sons, the bill of sale, and policy of insurance, which had been thus awarded to him. The policy was subsequently sent by Harford to Lindsay, to be put in suit against the South Carolina Insurance Company.

The ship Levi Dearborne was obliged to put into New York by stress of weather, and there Dearborne, on the 28th of October, 1811, made an assignment of The Abigail Ann, and of his interest in the ship Levi Dearborne, and of the policies upon both vessels, to S. Spring and Sons, to secure the payment of a debt due by Dearborne to them, amounting to about $ 16,000. The handwriting of Dearborne, and of the subscribing witness to the deed of assignment, were both proved; and one Maria Teubner, who testified to that of the subscribing witness, swore that she was one of his creditors, and

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