Page 96. line 6 from the foot, instead of "redenda,” read “reddenda.” 119. line 3, read "died," instead of "did." 214. line 16 from foot, instead of "sa. sa." read “ ca. sa.” 268. line the last. Insert between the words "had" and "doubt," the word "no." 294. Croussillat v. Ball. In this case, the jury, not being able to agree, were constituted referees, by consent of parties; and it was a report, not a verdict, in favour of the plaintiff. 410. (1) It has recently been suggested, by one of the counsel for the plaintiffs, in Penn's Lessee v. Kline, (Mr. Duncan that no compromise has taken effect. OF ERRORS AND APPEALS, DELAWARE. September Term 1788. (1) W. B. Surviving Partner, &c. Appellant, versus Latimer, Respondent. HE facts, arguments, and principles, involved in the discus Judge, in the following terms: DICKINSON, J. An action of trover was brought by the appellant and his partner, in the Court of Common Pleas, in Kent, for the brig Endeavour and her cargo. There was a general verdict and a judgment for the plaintiff, in that Court. The cause was then removed into the Supreme Court, by a writ of error, and there the judgment of the Court below was reversed. The appeal, in this cause, is from that judgment of reversal. Upon the trial, in the County Court, the plaintiff gave in evidence, "that the defendant, as marshal of the admiralty, appoint"ed Raiph Walker to take the brig and cargo into his care and "possession; that he did so, and continued possessed thereof "until they were replevied, by virtue of the writ of replevin. in "the judgment hereafter mentioned; and that the defendant, by a "warrant in writing, appointed John Dawson, deputy-marshal, " &c." (1) I have been presented with the report of this case, and of the next, by the learned and venerable judge, who pronounced the judgments of the Court; and their intrinsic merit, as well as the respect due to the Judge, must render any apology for their publication unnecessary. VOL. IV. a The 1788. The plaintiff then offered in evidence, the record of an action of replevin, brought by him and his deceased partner against the said Walker and others, to February term 1: 82, upon which action a judgment was entered, at the same term, by default, for the said brig and cargo. The defendant, by his counsel, objected to the same, inasmuch as he was not a party to the action of replevin; but the Court over-ruled the objection. To this opinion of the Court, the defendant's counsel tendered a bill of exceptions, that was sealed by the Judges, in which the facts beforementioned, were stated. . Upon the same trial, the defendant gave in evidence," the transcript of the proceedings in the Court of Admiralty, by which "it appeared, that the brig Endeavour and her cargo, had been "condemned in the said Court, as lawful prize, to, and for the "use of, the captors, and had been sold by the defendant, as "marshal of that Court, under that decree. The plaintiff, by "his counsel, objected to the operation of said condemnation, ❝inasmuch as the said Court of Admiralty had not jurisdiction, "the said brig and cargo being taken and seized, as prize, at "Whitehall landing,. in Little Duck creek, in the body of Kent county, and belonging, at the time of seizure, to citizens and "inhabitants of the said county, which objection, the Court held "to be sufficient, for the causes above stated." To this opinion of the Court, the defendant's counsel tendered a bill of exceptions, afterwards duly sealed, in which the particulars, before recited, are set forth. The capture was made, during the late war, in December 1781. It is contended, by the counsel for the appellant, "that the ac"tion, in this case; against the officer of the Court of Admiralty, "is maintainable, and two principal points are insisted on: 1st. "That the Court of Admiralty had not jurisdiction; and, 2d. That "if that Court had jurisdiction, yet the judgment in replevin, subsequent to the decree of condemnation, is an affirmance of pro"perty in the appellant, of which, as such an affirmance, we are "bound to take notice, and thereby to be concluded." ·66 With respect to the first principal point, it is urged, "that the "Admiralty had not jurisdiction by any principle of law, because "its jurisdiction extends only to acts done upon the high seas; and, in cases of capture, is governed by the law of nations, "which can apply only to questions between citizens, or subjects, "of different states, or kingdoms; that it had not jurisdiction "under any resolutions of congress, because they do not reach to "the present instance; that there was but a bare intent to offend; "and that the legislature of this state had directed a particular "mode of proceeding, in every such instance, by the act of assem"bly passed on the 20th day of May 1778." A great number of cases has been read, in order to show that the jurisdiction of the Admiralty, extends only to acts done upon upon the high seas. The same answer may serve for every one of them; they all relate to causes civil and marine, and not to causes of prize. The question, " prize, or no prize, belongs to the "jurisdiction of the Admiralty, whether the capture be upon the "high seas, in ports, rivers, or within the body of a county.". It is not necessary to inquire how far this doctrine may be extended. The cause now to be determined, is of a capture upon a navigable water. The decisions in the cases of Le Caux v. Eden, Lindo v. Rodney and another, Brown and Burton v. Francklyn, and Key and Hubbard v. Pearce, have removed every doubt upon this head. The other branch of this objection is, "that, in cases of cap"ture, the Admiralty is governed by the law of nations, which "can apply only to questions between citizens or subjects of dif 'ferent states or kingdoms." The law is as clear upon this, as upon the former, part of the objection. Whether it be, that, in time of war, the usual forms cannot be observed; or, that persons, engaged in enterprises favourable to enemies, are considered as connected with them in councils and interests; or that, as the welfare of a society depends on the issue of the war, therefore, the endeavours of the well affected, amidst uncertainties and dangers, to guard the public happiness, give a peculiar sanction to their exertions, it is evident that, upon captures as prize, the admiralty proceeds against the property taken, though it belongs to citizens or subjects of the state or kingdom, by the authority of which the Court is established. If this rule be deemed essential to the general weal, in common wars, arising, perhaps, from disputes about borders, distant territories, or commercial benefits, how much more occasion is there for such vigilance and strictness, in a war like the last, a war of invasion, piercing into the heart of a country, and involving in its event, the freedom of a whole people, and their posterity. In the cases before referred to, not to mention any more, Brown and Burton were English subjects, and Key and Hubbard, Le Caux and Lindo, were British subjects. Thus that law, from which our jurisprudence is derived, (2) stands established, by a multitude of judicial determinations, for several ages. The Courts of Admiralty, in these states, proceed in the same manner. The Court of Admiralty, in this state, condemned a vessel, taken in Jones's creek, within the body of Kent county, and belonging to an inhabitant thereof; (3) yet no objection, that (2) By the 25th section of our constitution, “the common law of England, "and so much of the statute law as has been heretofore adopted in practice, "shall remain in force, unless they shall be altered, &c." (3) The facts here mentioned, that the vessel was taken in Jones's creek, within the body of Kent county, and belonged to an inhabitant thereof, were stated in the libel of Barret and others. 1788. we 1788. we have ever heard of, as made to the jurisdiction of the Ad miralty. Here it may be proper to recollect, that, in the present instance, the Court of Common Pleas expressly held the objection of the appellant's, then plaintiff's, counsel, against the operation of the condemnation in the Admiralty, "to be sufficient, because that "Court had not jurisdiction, inasmuch as the brig and cargo were "taken and seized as prize, at Whitehall, in Little Duck creek, "in the body of Kent county, and belonging, at the time of seizure, "to citizens and inhabitants of said county." The next allegation of the counsel for the appellant is, "that "the Court of Admiralty had not jurisdiction under any resolu"tions of congress;" particularly referring to those of the 25th of November 1775, and the 23d of March 1776. The second of the resolutions, in November, provides, that “all "transport vessels, in the British service, &c. and all vessels, to "whomsoever belonging, that shall be employed in carrying pro“visions, &c. to the British army or navy, &c. shall be liable to "seizure, and, with their cargoes, shall be forfeited." By the fourth, it is "recommended to the legislatures of the United "Colonies, to erect Courts of justice, or give jurisdiction to the "Courts now in being, for determining concerning the captures "to be made as aforesaid, all trials in such cases to be had, by a "jury, &c." By the fifth, "all prosecutions shall be commenced "in the Court of that colony, in which the captures shall be "made; but if no such Court be, at that time, erected, in the "said colony, or if the capture shall be made on open sea, then "the prosecution shall be in the Court of such colony as the captor may find most convenient, &c." By the sixth, an ap"peal, in all cases, shall be allowed to congress, or such persons as they shall appoint, &c." 66 By the fifth of the resolutions, in March, it is determined, "that all vessels, &c. belonging to the inhabitants of Great Bri"tain, as aforesaid, and all vessels, which may be employed in "carrying supplies to the ministerial armies, which shall happen "to be taken near the shores of any of these colonies, by the peo"ple of the country, or detachments from the army, shall be "deemed lawful prize; and the Court of Admiralty, within the "said colony, is required, on the condemnation thereof, to ad"judge payment of charges, and distribution, &c." It is said, "that if the words · all vessels, and all vessels to "whomsoever belonging,' can be construed to extend to vessels "owned by inhabitants of the United States, then colonies, yet "the first set of resolutions, wholly respects a condemnation 66 upon trial by jury, and the second set, captures near the "shores of any colony,' circumstances very different from those "of the present instance; and both sets have regard, solely, to "vessels |