1825. Sheriff to the use of the parties; but who the The Josefa parties were to whose use the Sheriff must hold Segunda. them, could not be ascertained by him, but must be awarded by the Court, to whom, as an incident to the principal cause, it exclusively belonged. In what manner could any other Court be authorized to ascertain who was the commanding officer of the capturing vessel? The decree of the Court, in distributing the proceeds of the vessel and cargo, must necessarily involve this inquiry; and certainly it cannot for a moment be maintained in argument, that any other person than the commander of the capturing vessel, who would share the proceeds of the prize and her cargo, could be within the meaning of the law of Louisiana. The common form of drawing up decrees, in cases of condemnation, is, that the proceeds be distributed according to law. But if any difficulty arises, upon petition, the Court always proceeds to decide who are the parties entitled to distribution, and to make a supplementary decree. But it may do the same in the first instance, and make the particulars of the distribution a part of the original decree. In the present case, if the original decree had been drawn out at large, it ought to have been, that the negroes so captured be delivered over to the Sheriff of New-Orleans for sale, according to the act of Louisiana in this behalf provided, and that the net proceeds of the sale be afterwards paid over, viz. one moiety to A. B., adjudged by the Court to be the commanding officer of the capturing vessel, and the other moiety to the Charity Hospital The Josefa of New-Orleans. This course of proceeding is 1825. very familiar in prize causes; where the Court of Admiralty always ascertains who are the cap- Segunda. tors entitled to the prize proceeds; and the Courts of common law will never entertain any jurisdiction over the proceeds until after such adjudication. Considering this cause, then, as a cause of admiralty and maritime jurisdiction, belonging exclusively to the Courts of the United States, we are not aware how any other Court could adjudge upon the question who were the captors or seizors entitled to share the proceeds; and we think that the District Court has jurisdiction over the present proceedings. do What is nehe stitute a valid seizure, so as cessary to con is to entitle the party to the forfeiture. In respect to the claim of Mr. Roberts, we not think that the evidence establishes that ever made any valid seizure of the vessel. It not sufficient that he intended to make one, or proceeds of a that, on some occasions, he expressed to third persons that he had so done. There must be an open, visible possession claimed, and authority exercised under a seizure. The parties must understand that they are dispossessed, and that they are no longer at liberty to exercise any dominion on board of the ship. It is true, that a superior physical force is not necessary to be employed, if there is a voluntary acquiescence in the seizure and dispossession. If the party, upon notice, agrees to submit, and actually submits, to the command and control of the seizing officer, that is sufficient; for, in such cases, as in cases of captures jure belli, a voluntary surrender of authority, and an agreement to obey the captor, The Josefa 1825. supplies the place of actual force. But, here, Mr. Roberts gave no notice of the seizure to the Segunda. persons on board; he exercised no authority, and claimed no possession. He had no force adequate to compel submission; and his appearance in the vessel gave no other character to him than that of an inspector, rightfully on board, in performance of his ordinary duties. To construe such an equivocal act as a seizure, would be unsettling principles. Messrs. Humphrey, Meade, and Gardner, certainly did make a seizure, by their open possession of the vessel, and bringing her under the guns of Fort St. Philip. But there is this objection to the seizure, both of Mr. Roberts, (assuming that he made one,) and of the other persons, that it was never followed up by any subsequent prosecution Effect of a or proceedings. The seizure of Messrs. Humbandonment of phrey, Meade, and Gardner, seems to have been voluntary a a seizure. voluntarily abandoned by them; and even that of Mr. Roberts, if he made one, does not seem to have been persisted in. Now, a seizure, or capture, call it which we may, if once abandoned, without the influence of superior force, loses all its validity, and becomes a complete nullity. Like the common case of a capture at sea, and a voluntary abandonment, it leaves the property open to the next occupant. But what is decisive in our view is, that neither of these gentlemen ever attempted any prosecution, or intervened in the original proceedings in the District Court, claiming to be seizors, which was indispensable to consummate their legal right; and their claim The Josefa was, for the first time, made after a final decree 1825. of condemnation in the Supreme Court. This was certainly a direct waiver of any right acquired Segunda. by their original seizures. It is not permitted to parties to lie by, and allow other persons to incur all the hazards and responsibility of being held to damages in case the seizure turns out to be wrongful, and then to come in, after the peril is over, and claim the whole reward. Such a proceeding would be utterly unjust, and inadmissible. If the parties meant to have insisted on any right, as seizors, their duty was to have intervened in the District Court before the hearing on the merits, according to the course pointed out by Lord Hale in the passage cited at the bar, where there are several persons claiming to be seizors of forfeited property." In the present case, Mr. Chew actually advanced a considerable sum of money for the maintenance of these negroes during the pendency of the suit; and if it had been unsuccessful he must have exclusively borne the loss. Upon the plain ground, then, that Mr. Roberts, and Messrs. Humphrey, Meade, and Gardner, have not followed up their seizure by any prosecution, such as the act of 1807 re a Harg. Law Tracts, (4to.) p. 227. "At common law, any . person might seize uncustomed goods to the use of the king and himself, and thereupon inform for a seizure. But yet, if A. seize goods uncustomed, and then B. seize them for the same cause, he that first seizeth ought to be preferred as the informer. And, therefore, if B., that seized after, first inform, and A. also inform, A. may be admitted to interplead with B., upon the priority of the seizure, before the merchant shall be put to answer either." 1825. quires, we are of opinion, that there is no foundation, in point of law, for their claims. The Josefa That Mr. Chew, on behalf of himself, and the Surveyor and Naval Officer of the port of NewOrleans, did make the seizure on which the prosecution in this case was founded, is completely proved by the evidence; it is also admitted by the United States, in their answer to the libel of Messrs. Carricaberra, &c. the Spanish claimants, and is averred by Mr. Chew, and his coadjutors, in their separate allegation and answer to the same libel. While the vessel lay at Fort St. Philip, armed boats, under revenue officers, were sent down by him, with orders to seize her, and bring her up to New-Orleans for prosecution, which was done accordingly. The remaining question then is, whether Mr. Chew, for himself and his coadjutors in office, is to be considered as entitled to the proceeds of the vessel under the act of Congress, and to the proceeds of the negroes, as "the commanding officer of the capturing vessel," within the sense of the Louisiana law. If he is entitled to the proceeds of the vessel and cargo, under the 7th section of the act of 1807, then, we think, he must be fairly considered as within the spirit, if not the letter, of the act of Louisiana. The 7th section is certainly not without difficulty in its construction. In the first clause it declares, that vessels found "in any river, port, bay, or harbour, or on the high seas, within the jurisdictional limits of the United States,, or |