152. Bond for Appeal in Prize Case. December 19, 1741.1

On the nineteenth day of Decem'r Anno Dom 1741 Personally Appeared at Boston in New England John Overing, Esqr., and John Homans, Merchant, both of Boston Aforesaid, who Submitting themselves to the Jurisdiction of the High Court of Admiralty of England Obliged themselves, their Heirs, Executors and Admin's to Thomas Lee, Merch't, and John Tyler, Brazier, both of Boston Aforesaid, Owners of the Brig't Sarah, Thos. Smith Mas'r, In the Sum of Three hundred Pounds of Lawful money of Great Brittain To This Effect, That is to say, Whereas John Freebody of Newport in the Colony of Rhoad Island, Merchant, Exhibited a Libel in the Court of Vice Admiralty for the Province of the Massachusetts Bay in behalf of Himself and Benja. Norton, Owners of a Privateer Sloop called the Revenge, And as Agent for and in behalf of the Officers and Mariners of said Sloop, Against the Aforesaid Brig't Sarah for Salvage, etc. as per Libel on file More fully sets forth, And whereas by decree of said Court of Vice Admiralty Dated the Seventh day of Decem'r instant the said Libel was dismist, And the said Freebody haveing Appealed from said decree or Sentence to the Commissioners Appointed or to be Appointed Under the Great Seal Of Great Brittain for Receiveing, hearing and determining Appeals In causes of Prizes, now in Case the said John Freebody shall not Prosecute the said Appeal to Effect within twelve months from the Date hereof or in Case the Aforesaid decree Shall not be Revers'd By the said Commissioners, then they do both hereby Severally Consent That Execution shall Issue forth Against them, their Heirs, Executors, Admin'rs, Goods and Chattels, wheresoever the same shall be found, to the Value of the said Sum of Three hundred Pounds before mentioned, or Treble such Costs as shall be Taxed in the said Court of Vice Admiralty, But

Ibid. The law required the appellant to give bond to prosecute. A similar bond (Rhode Island, 1756) is printed in Professor Hazeltine's monograph on "Appeals from Colonial Courts", in Annual Report of the American Historical Association for 1894, pp. 344-345.

in Case the said decree be Reversed by the said Commissioners Then this Bail shall be Void and of none Effect, and in Testimony of The Truth thereof they have hereunto Subscribed their names.

Att'r JOHN PAYNE, D. Reg'r.

J. OVERING.
JNO. HOMANS.

Exam'd per JOHN PAYNE, D. Reg'r.

153. Case (Freebody c. Sarah) and Opinions of Civilians. May 17, July 10, 1742.1

CASE.

The English Brigantine called the Sarah, Thomas Smith Master, together with her Cargo, consisting of Rum, Sugar, Cotton and money on Board, was in her Passage from Barbadoes taken and Seized by a Spanish Privateer mounted with Sixteen Guns and Manned with upwards of Forty Men, who took out of the said Brigantine all the Money, but Continued all the rest of her Cargo on board of her, and the Spanish Privateer ordered and Caused the Master and Four of the Brigantine's Men to be put on Board the Privateer and put some of the Privateers Men on Board the Brgt. and turned her Long Boat adrift and the Brigantine was Ordered to keep Company with the Privateer and Steer for the Havannah. About Twenty Leagues from the Havannah, near the Island of Cuba, an English Privateer Sloop called the Revenge (Benjamin Norton Commr.) came up with the said Spanish Privateer in Company with the said Brigantine, Engaged and took the Said Spanish Privateer and at the same time retook the said English Brigantine and Cargo on board, and Capt. Norton then took all the Spaniards out of the said Spanish privatr. and English Brigantine and put them on board his own Privateer, and Ordered Thomas Smith, the Master, and Crew of the said English Brigantine from on Board the Spanish Privateer to be put on Board the said Brigantine, and at 'Massachusetts Historical Society.

the same time put on Board her Jeremiah Harimen, One of his own Privateer's Crew, to keep Possession of her until Salvage Shd. be paid for the Recapture, at the same time with Orders to keep the Privateer Company and proceed to Rhode Island.

Soon after, either by the Contrivance of Thos. Smith, the Master of the Brigantine, or by the Wind blowing fresh, the Brigantine was Seperated or lost Sight of the Privateer.

The Brigantine met with a Spanish Ship Mounted with six Guns and Navigated with about 25 Men, who boarded the Brigantine and Plundred her and took out of her part of her Rigging, Sails, Cables and Anchors, and part of her Lading, and the next day they quitted her, but first took out of her the Mate, One hand and a Boy, and put them on Board their Spanish Merchant Ship and carried them away.

Capt. Smith afterwards proceeded with the said Brigantine and in her Passage coming near Block Island was desired by Jeremiah Harimen (who was put on board to keep Possession of her as a fore said) to go into Rhode Island but refused the same and proceeded to Boston, where upon her arrival the said Jeremiah Harimen was put out of possession of her, and Thos. Smith, the Master, Caused her Cargo to be unloaded and delivered and afterwards to be refitted, without the Least offering to pay any Salvage, under pretence that the Master of the Spanish Mercht. Ship after plundering the Brigantine gave the same to the said Thos. Smith the Master.

Thereupon the Commr. and Owners of the English Privateer caused the said Ship to be arrested in the Vice Admiralty Court of Boston to Answer the said Salvage.

Pleas were given and Admitted and Several Witnesses Exd. on both sides, and the Judge of Vice Admiralty dismissed the Cause without giving any Salvage whatsoever, from which Decree it is Appealed on the behalf of the Comr. and Owners of the said English Privateer.

Observe. By the Depo[sitio]ns of the Witnesses there Appears to be some Variation relating to the Seizure of the Brigantine by the Spanish Mercht. Ship. Thos. Smith, Mas

ter of the Brigantine, and his Mariners Swear that the Spanish Mercht. Man after seizing and plundering her gave him the Ship.

Jeremiah Hariman, who was put on board by the English Privateer in Order to keep Possesn. of her, differs from them in his depo [sitio]ns.

Q. Are not the Owners and Comr. of the English Privateer intitled to a Moiety of the said Brigantine and her Lading for Salvage by reason the Brigantine was in Possessn. of the Spanish Privateer above 96 hours before she was retaken, and whether they have not Just Cause of Appeal.

If Capt. Norton, the Commander of the English Privateer, after having retaken the Brigantine from the Spanish Privateer, had kept possession of her, and Carried her safe into a British port, he and his Owners would have been entitled to Salvage, According to the Directions of the Act of Parliament. But as the Brigantine was afterwards taken by another Spanish Ship, before she got into Port, and not protected against the Enemy by Capt. Norton, it seems to me very doubtful whether he can Claim the Salvage According to the Act of Parliament, For Salvage is understood to be a Reward to the Recaptor, who has not only rescued the Ship and Cargo out of the hands of the Enemy, but has also effectually Secured the same for the benefit of the Owners, till the safe Arrival of the Ship in a British Port, Which not having been done in the present Case, makes me doubt of Success in an Appeal from the Sentence. WILL. STRAHAN.3

DOCTRS COMMONS, May 17, 1742.

According to the Evidence given in this Case I am of Opinn. that the Brigantine the Sarah, being taken the 17th

*For query, on which the London agents of Freebody and Norton (see doc. no. 154), or an admiralty proctor acting for them, sought the opinion of eminent civilians at Doctors' Commons-Dr. Strahan, Dr. Paul, and Dr. Andrews for all the practitioners in the admiralty and ecclesiastical courts were doctors, of the civil law (D. C. L., Oxford) or of the civil and canon law (LL. D., Cambridge).

3

An eminent advocate, of Scottish origin, M. A. Edinburgh 1686, D. C. L. Oxford 1709, an advocate from 1710, advocate to the admiralty 1741-1748. As to Doctors' Commons, see doc. no. 102, note 2.

of Septemr. 1741 by a Spanish Privateer in a voyage from Barbados, and retaken on the 26th of Septemr. 1741 by the Privateer the Revenge from Rhode Island, commanded by Capt. Norton, and convey'd to Boston, The Captain of the Privateer the Revenge will be well entitled to Salvage for the Brigantine and her cargo, and the said vessel having been 96 Hours in possession of the Spaniards, the Revenge Privatr. will be well entitled to a Moiety of the value of Ship and Cargo.

The said Brigantine being seiz'd on the 4th of October by a Spanish Merchant Ship and plunder'd will not abate the Revenge's Right to Salvage. If the Spanish Merchant Ship did actually give the Brigantine (on the 5th of October at the request of a Spanish Priest) to Mr. Thomas Smith, that will not barr the Salvage because such Ship could have no property in the Brigantine. I therefore think that there's good Reason for an appeal if this Case be truly stated. G. PAUL.4

DR. COMMONS, July 10th 1742
Copy

The Right of Salvage acquir'd by the Recapture of the Sarah Brigt. was not, I conceive, extinguished by its being taken again by the Spanish Merchant Ship, she not being carried intra praesidia, but only plundered and let go. The Pretence of a Gift thereof to Captn. Smith can have no weight, for the Spanish Mercht. acquir'd no property by the Capture and could transfer none to Smith, who has deliver'd the Cargo to the Owners and Freighters, to which he would have had as much right as to the Ship. As the pretended Gift could transfer no property, it could extinguish no right which had been acquir'd by the Revenge, Except as to such part of the Cargo as was taken away by the Spaniard. But

George Paul, fellow of Trinity Hall, Cambridge, a foundation specially devoted to the civil law, LL.D. Cambridge 1704, vicar-general to the archbishop of Canterbury 1714-1755, king's advocate 1727-1755.

"Within the places of safety", such as ports or fleets. "Movable goods carried intra praesidia of the enemy become clearly and fully his property, and consequently, if retaken, vest entirely in the recaptors. The same is to be said of ships, carried into the enemy's ports, and afterwards recaptured". Bynkershoek, Quaestiones Juris Publici, lib. 1, ch. 5.