and he enumerates "fleets" among the præsidia, uns der the protection of which the thing taken may be considered as safe; so that a bringing into the territorial limits is not indispensable, because the fleet into which the captor brings his prize may be remote from the coasts of his country. It results, then, that the loss of the spes recuperandi is the true foundation of the rule established by jurists: it is this which consummates the title of the captors, and destroys the jus postliminii of the law of nations; it is the municipal code of England alone which requires a sentence of condemnation to perfect the title. 2. But, supposing the jus postliminii still to continue, it is a right to be asserted by the subjects of the state from whom the property has been captured. But is it competent for one citizen of the belligerant state to devest another of the incipient inchoate title he had acquired by the first capture? The recapture by the enemy might, indeed, enable the original owner to reclaim his property; if a sentence of condemnation be necessary, it might affect the title of a neutral purchaser; but the jus postliminii can have no operation as between the first and second captors. Harper, contra, was stopped by the court. 1816. The Astrea. MARSHALL, Ch. J. An interest acquired by pos- March 4th, session, is devested by the loss of possession from the very nature of a title acquired in war. The law of e Bynk. Q. J. Pub. c. 3. p. 29. of Du Ponceau's Translation. 1816. The Astrea. our own country, as to salvage, settles the question, and the case of the Adventure is directly in point and conclusive. Sentence of the circuit court affirmed. February Term, 1814.-This was the case of a British ship captured by two French frigates, and, after a part of the cargo was taken out, presented to the libellants in the cause, citizens of the United States, (then neutral,) whose vessel the frigates had before taken and burnt; by whom she was navigated into a port of this country, and, pending the suit instituted by them, war was declared between the United States and Great Britain. A question arose, whether this was a case of salvage? Mr. J. JOHNSON, by whom the opinion of the court was delivered, stated, that "the fact of the gift was established by a writing under the hand of the commander of the squadron of rigates, in these words, Je donne au capitaine, &c., in the language of an unqualified donation, inter vivos. In this case, the most natural mode of acquiring a definite idea of the rights of the parties in the subject matter, will be, to follow it through the successive changes of circumstances, by which the nature and extent of those rights were affected :-the capture, the donation, the arrival in the neutral country, and the subsequent state of war. As be tween belligerants, capture undoubtedly produces a complete devesture of property. Nothing remains to the original proprietor but a mere scintilla juris, the spes recuperandi. The modern and enlightened practice of nations has subjected all such captures to the scrutiny of judicial tribunals, as the only practical means of furnishing documentary evidence to accompany vessels that have been captured, for the purpose of proving, that the seizure was the act of sovereign authority, and not of mere individual outrage. In the case of a purchase made by a neutral, Great Britain demands the production of such documentary evidence, issuing from a court of competent authority, or will dispossess the purchaser of a ship originally British. 1 Rob. 135. The Flad Oyen. Upon the donation, therefore, whatever right might, in the abstract, have existed in the captor, the donee could acquire no more than what was consistent with his neutral character to take. He could be in no better situation than a prize master, navigating the prize in pursuance of orders from his com mander. The vessel remained liable to British recapture on the whole voyage: and on her arrival in a neutral territory, the donee sunk into a mere bailee for the British claimant, with those rights over the thing in possession which the municipal law (civil and common) gives for care and labour bestowed upon it. The question then recurs, is this a case of salvage? On the negative of the proposition it was contended, that it is a case of forfeiture under the municipal law, and, therefore, not a case of salvage as against the United States; that it was an unneutral act to assist the French belligerant in bringing the vessel infra paæsidia, or into any situation where the rights of capture would cease; and, therefore, not a case of salvage as against the British claimant. But, the court entertains an opinion unfavourable to both those objections. This could not have been a case within the view of the legislature when passing the non-importation act of March, 1809. The ship was the plank on which the shipwrecked mariners reached the shore; but to have cast into the sea the cargo, the property of a belligerant, would have been to do him an injury, by taking away the chance of recovery, subject to which they took it into their possession. Besides, bringing it into the United States does not necessarily presuppose a violation of the nonimportation laws. If it came within the description of property VOL. I. cast casually on our shores, as the court is of opinion it did, legal provision existed for disposing of it, in such a manner as would comport with the policy of those laws. At last, they could but deliver it up to the hands of the government, to be re-shipped by the British claimants, or otherwise appropriated under the sanction of judicial process. And such was the course that they pursued. Far from attempting any violation of the laws of the country, upon their arrival they delivered it up to the custody of the laws, and left it to be disposed of under judicial authority. The case has no feature of illegal importation, and cannot possibly have imputed to it the violation of municipal law. As to the question arising on the interest of the British claimants, it will, at this time, (war having supervened,) be a sufficient answer, that they who have no rights in this court cannot urge a violation of their rights against the libellants. But there is still a much more satisfactory answer. To have attempted to carry the vessel infra præsidio of the enemy, would, unless it could have been excused on the ground of necessity, have been an unneutral act. But where every exertion is made to bring it into a place of safety, in which the original right of the captured would be revived, and might be asserted, instead of aiding his enemy, it is doing an act exclusively resulting to the benefit of the British claimant." A salR 1816. The Astrea. The law of Kentucky requires, in the location of warrants for land, some general description designating the place where the particular object is to be found, and a description of the particular object itself. The general description must be such as will enable a person intending to locate the adjacent residuum, and using reasonable care and diligence, to find the object mentioned in that particular place, and avoid the land already located. If the description will fit another place better, or equally well, it is defective. "The Hunter's trace, leading from Bryant's station over to the waters of Hinkston, on the dividing ridge between the waters of Hinkston and the waters of Elkhorn," is a defective description, and will not sustain the entry. APPEAL from a decree in chancery in the circuit court of Kentucky. This cause was argued by Hughes and Talbot, for the appellants, and Hardin, for the respondents. It was, principally, a question of fact arising under the local laws of real property in Kentucky, for an outline of which the general reader is referred to the APPENDIX, note I., where will be found an exposition of the elementary principles applicable to this class of causes. MARSHALL, Ch. J., delivered the opinion of the court, as follows: This is an appeal from a decree of the circuit court of Kentucky, by which the plaintiff's bill was dismissed. The object of the suit is to enjoin the proceedings of the defendant at law, and to obtain from him a conveyance for so much of the land contained in his patent as interferes with the entry and survey made by the plaintiff. The plaintiff claims by virtue of an entry made on the 17th of January, 1784, the material part of which is set forth in the bill in these words: "Richard Masterson enters 22,277 and a half acres of land, on treasury warrant No. 19,455, to be laid off in a parallelogram twice as long as wide, to include a mulberry tree marked thus, "F," and two hiccories, with four chops in each, to include the said three marked trees near the centre thereof; the said trees standing near the Hunter's trace, leading from Bryant's station over to the waters of Hinkston, on the dividing ridge between the waters of Hinkston and the waters of Elkhorn." This entry has been surveyed, he states, according to location, and that part of it which covers the land in controversy has been assigned to him. The validity of this entry constitutes the most essential point in the present controversy. If it cannot be sustained, there is an end of the plaintiff's title; 1816. Matson V. Hord. March 5th. |