(PRIZE.)

The Venus.-JADEMEROWSKY, Claimant.

A case of farther proof.

APPEAL from the decree of the circuit court for the district of Georgia. This ship having taken in a cargo at London, proceeded to Portsmouth, and from thence, on the 12th of April, 1814, sailed for St. Bartholomews, under convoy of a British ship of war. From St. Bartholomews she sailed for the Havannah, but on her passage thither was captured and sent into the island of St. Thomas, for adjudication, by a British cruiser. Upon being released from this detention, she abandoned her destination for the Havannah, and was proceeding to Amelia Island, when she was captured by the flotilla under the command of commodore Campbell, and sent into the port of Savannah, where the vessel and cargo were libelled as prize. The ship was restored by consent, in the court below, as Russian property; the cargo was condemned as prize of war, and an appeal entered from that sentence by the claimant. The proofs of property consisted, 1. Of a recital in a power of attorney, from one Jones, the alleged agent, in London, of the claimant, (who was stated to be a Russian merchant domiciled at St. Petersburgh,)

to Mr. Diamond, the supercargo. 2. A certificate of property from the Russian Consul General in

London. 3. The testimony of Mr. Diamond, and 1816. other witnesses, taken in preparatorio, expressing their belief that the property was as claimed.

Charleton, for the appellant and claimant, offered to read affidavits in the nature of farther proof.

STORY, J. Until the cause is heard, farther proof cannot be admitted.

MARSHALL, Ch. J. If, upon the opening, it appears to be a case for farther proof, then it may be admitted instanter, unless, indeed, the court should be of the opinion that the captors ought to be allowed to produce farther proof also. The cause is before us as if in the inferior court.

Charleton. We contend that it is a case entitled to farther proof, and that there is no circumstance of fraud or mala fides to preclude it.

upon

The Attorney General, contra. It is incumbent the claimant to make out his title by competent testimony, according to the rules of the prize court; and if the court should be of opinion, that the property does not belong as claimed, the captors will be entitled to condemnation, without specifically proving to whom it does belong." The recital in the power from Jones to Diamond, cannot be sufficient to show the interest of Mr. Jademerowsky.

a 1 Rob. 227. The Odin. 3 Rob. 68. The Neptunus.

The Venus,

1816.

The Venus.

The recital in a deed binds only the parties, and those claiming under it: we are entitled to the production of the original power, duly authenticated." The certificate of the Russian consul general is no proof of the real property. The failure on the part of the supercargo to testify, positively, as to the property, is, in the prize court, always held strongly against the title of the claimant. The cargo was purchased and loaded in a British port, and the ship had an alternative destination to a British colony. The voyage is different from that authorized in the original power from Mr. Jademerowsky to Jones ; and, therefore, such power either never existed, or it is falsified by the evidence, and must be repudiated by the court.

Pinkney, in reply, agreed that, in a suspicious. case, restitution could not be demanded upon the original evidence; but, this is a case of farther proof, and there is no evidence of fraud, or unneutral conduct, to preclude it. The documentary evidence expresses neutral account and risk. By the law of nations, the papers must be supported by the examinations in preparatorio; but, there is no determination which warrants the position, that the supercargo must swear to any thing more than belief. He is, in this respect, in the same predicament with the master. In both cases, it is matter, not of positive knowledge, but of inference from the circumstances which

b 1 Rob. 133. The Argo.
d 1 Rob. 68. The Neptunus.

c 1 Rob. 19. The Endraught.

come to his knowledge. The consular certificate is a part of the ship's papers, and, as such, is necessarily a part of the documentary evidence in the cause. The recital of the procuration is said not to be admissible at common law; but, this court is now sitting as a court of prize.

1816.

Preston
V.

Browder.

The cause was this day ordered to farther proof, March 2d. on the part of the captors and claimants.

Farther proof ordered.

(LOCAL LAW.)

PRESTON V. BROWDER.

The Act of Assembly of North Carolina, of November, 1777, establishing offices for receiving entries of claims for lands in the several counties of the state, did not authorize entries for lands within the Indian boundary, as defined by the treaty of the Long Island of Holston, of the 20th of July, 1777. The Act of April, 1778, is a legislative declaration explaining and amending the former Act, and no title is acquired by an entry contrary to these laws.

ERROR to the circuit court for the district of East Tennessee. This was an action of ejectment commenced by the plaintiff in error in that court. On the trial of the cause, the plaintiff produced and read in evidence an entry made on the 25th of Feb

1816.

Preston

V.

Browder,

ruary, 1778, in the name of Ephraim Dunlap, for 400 acres of land in the point between Tennessee and Holston rivers. Also, a grant to said Dunlap, issued in virtue of, and founded upon, said entry, under the great seal of the state of North Carolina, dated the 29th of July, 1793; which grant was duly registered. The plaintiff also produced, and read in evidence, a deed of conveyance, with the certificates of probate and registration endorsed, from Dunlap, the grantee, to John Rhea. Also, a deed of conveyance from said Rhea to the lessor of the plaintiff. It was also proved that the land lies within the boundaries of what was the state of North Carolina at the time of making said entry, and within the county of Washington; likewise, within the territory ceded by the state of North Carolina to the United States, in 1789, and within the now county of Blount, in the district of East Tennessee; that it lies on the south side of Holston river, and between Big Pigeon and Tennessee river, and west of a line described in the 5th section of the act of the general assembly of North Carolina, passed in April, 1778, chap. 3. Also, within the tract of country secured to the Indians in 1791, by the treaty of Holston, and that the Indian title thereto was relinquished in 1798 by the treaty of Tellico. The defendant produced and gave in evidence, a grant from the state of Tennessee to himself, made out and authenticated in the manner prescribed by the laws of Tennessee, and dated the 18th of May, 1810, which covers and includes the whole of the land in his possession, and for which this suit was brought. The