1816. The courts shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, Octavia, including all seizures under laws of impost, navigation, or trade, of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts, as well as upon the high seas," &c. The presumption arising from the collective use of debt, information, and indictment, in the Non-Intercourse Act, is, that they relate to a common law jurisdiction. The word information cannot be synonymous with libel, because the first is a common law, the second a civil law proceeding. A common law proceeding may be applied by statute to admiralty suits. The statute 23th Henry VIII. c. 15. prescribes a common law process (indictment) for offences triable in the admiralty. [STORY, J. That was the high commission court.]. Dexter answered, that he was aware of it; but that a suit may be a cause of admiralty and maritime jurisdiction, and yet triable by common law process." d Before the statute 28th Henry VIII. c. 15., the admiralty had a very extensive criminal jurisdiction, which seems to have been coeval with the very existence of the tribunal, in which it proceeded according to the civil law, and other its own peculiar codes; but by the process of indictment found by a grand jury, and a capias there C. upon delivered by the admiral or STORY, J., delivered the opinion of the court. This case depends on a mere question of fact. After a careful examination of the evidence, the majority of the court are of opinion, that the decree of the circuit court ought to be affirmed. It is deemed unnecessary to enter into a formal statement of the grounds of this opinion, as it is principally founded upon the same reasoning which was adopted by the circuit court in the decree which is spread before us in the transcript of the record. Decree affirmed with costs. exists; and all offences within it, which are not otherwise provided for by positive law, are punishable by fine and imprisonment. See 4 Black. Com. 263. Brown's Civ. & Adm. Law, Appendix, No. 111. The statute 28th Henry VIII. c. 15., provides, that all treasons, felonies, &c., on the seas, or where the admiral hath jurisdiction, &c. shall be tried, &c., in the realm, as if done on land; and commissions under the great seal shall be directed to the admiral or his lieutenant, and three or four others, &c., to hear and determine such offences, after the course of the laws of this land for like offences done in the realm. And the jury shall be of the shire within the commission. Stat. 33d Geo. III. c. 66. Under this provision the sessions at the Old Bailey are now held, at which the judge of the High Court of Admiralty e As the opinion of the court below is referred to for the grounds upon which its decree was affirmed, it may seem fit here to insert so much of that opinion as develops the principles and rules of evidence applied by the court in cases of this nature. After stating the facts of this case, the learned judge proceeds: "Since I have had the honour to sit in this court I have prescribed to myself certain rules, by the application of which, my judgment, in cases of this nature, has been 1816. The Octavia. Feb. 13th. 1816. The Octavia. uniformly governed. 1st. Where the claimants assume the onus probandi (as they do in this case) not to acquit the property, unless the defence be proved beyond a reasonable doubt. 2d. If the evidence of the claimants be clear and precisely in point, not to indulge in vague and indeterminate suspicions, but to pronounce an acquittal, unless that evidence be clouded with incredibility, or encountered by strong presumptions of mala fides, from the other circumstances of the case." He also alludes to the absence of documentary evidence to support the defence set up by the claimants as affording an example of the application of these rules, as well as of another rule equally import"What strikes me as decisive against the defence is the entire absence of all documents respecting the cargo. Bills of lading, letters of advice, or general orders, must have existed. If the eargo had been destined for Boston only, there would not have ant. been so much difficulty. But the defence shows its destination ulti mately for Liverpool. Where, then, is the contract of affreightment, the bills of lading, the letters of advice, and the correspondence of the shippers, or of Mr. P. Grant? Can it be credible that, without any authority, the master, or part owner of the ship should, on their own responsibility, have gone to Liverpool, without orders or consignment? That from a mere vague knowledge of the wishes of the shippers, they should place at imminent risk the whole property, without written authority to colour their proceedings? There must have been papers. They are not produced. The affidavits of the shippers, of Mr. Grant, of the consignees in England, are not produced. What must be the conclusion from this general silence? It must be, that if produced, they would not support the asserted defence. At least, such is the judgment that both the common law and the admiralty law pronounces in cases of suppression of evidence," (PRIZE.) The Mary and Susan.-G. & H. VAN WAGENEN, Claimants. Where goods were shipped in the enemy's country, in pursuance of orders from this country received before the declaration of war, but previous to the execution of the orders, the shippers became embarrassed, and assigned the goods to certain bankers to secure advances made by them, with a request to the consignees to remit the amount to them, (the bankers,) and they also repeated the same request, the invoice being for account and risk of the consignees, but stating the goods to be then the property of the bankers, it was held, that the goods having been purchased and shipped in pursuance of orders from the consignees, the property was originally vested in them, and was not devested by the intermediate assignment, which was merely intended to transfer the right to the debt due from the consignees. APPEAL from the circuit court for the district of New-York. The goods in question were part of the cargo of the ship Mary and Susan, a merchant vessel of the United States, which was captured on the 3d of September, 1812, by the Tickler, a private armed vessel of the United States. The cargo was libelled as prize of war; this portion claimed by Messrs. G. & H. Van Wagenen, and condemned in the district court. In the circuit court this sentence was reversed, and restitution to the claimants was ordered; from which decree the captors appealed to this court. The cause having been heard in both the courts below, on the documentary evidence found on board, the original order for the goods does not appear. That they were shipped in were shipped in consequence of 1816. The Mary and Susan. 1816. The Mary orders, is, however, sufficiently proved by the letters addressed to the claimants, and the other papers and Susan. which accompanied them. These are, 1. An invoice headed in the words following: Birmingham, 8th July, 1812. "Invoice of fourteen casks and four baskets of hardware, bought by Daniel Cross & Co. by order, and for account and risk, of G. & H. Van Wagenen, Merchants, New-York, marked and numbered as per margin, and forwarded on 4th March, 1811, to care of Martin, Hope, & Thornley, Liverpool, and by them afterwards transferred to the care of T. and W. Earle & Co. of Liverpool; which goods are now the property of Messrs. Spooner, Attwood & Co., Bankers, of Birmingham, to whom you will please to remit the amount of this invoice." And containing at the foot, after the enumeration of the articles and their prices in the usual form, the following charges: "Amount of Invoice, £ 1041 0 11 1-2 "Commission 5 per cent. "Freight to Liverpool, cooperage, Commission 5 per cent. Insurance on the Mary and 52 1 01-2 |