*In September, 1779, Silas Talbot being on a cruise in the continental sloop Argo, discovered and pursued the brig Betsey, a British letter of marque, about 200 tons burthen, armed with eight fix pounders, and laden with 214 puncheons of rum, and 1 quarter cask, and bound from Montserrat or St. Christopher’s to New York, then in possession of the ene*66my. After an engagement of two hours, Talbot captured the Betsey, aud put one West on board her as a prize master, together with eleven of his crew, with written orders to take the prize into the port of New London, then not far distant, for condemnation. Soon after the capture, the three brigs, Achilles, Patty and Hibernia, belonging to the respondents in this cause, merchants of Philadelphia, came up with the brig Betsey under British colours. The Argo taking them for enemies, was obliged to fly. One of the three brigs chased the Argo, whilst the Patty fired upon, boarded and captured the Betsey. Well, the prize master, finding them to be Americans, declared the Betsey was a prize to captain Talbot of the Argo, then in sight, and shewed Talbot’s written orders; but asserted that she had been captured three days before. The persons who boarded the Betsey having seen a battle the day before between a brig and a sloop, which they took to be the same, and observing that the number of men on board corres*67ponded with the number registered in her British papers, concluded that no credit should be given to Weil’s declaration ; whereupon a consultation* was held by the three captains, who finally made prize of the Betsey, took out all the Argo’s men, except a negro, and, putting their own hands on board, ordered her for Philadelphia; but she was soon after captured by a British cruiser, and taken into New York, and so soft to all parties. The three brigs pursued their respective voyages, taking the Argo’s men with them, who were dispersed in Spain, and other remote parts.
The respondents have rested their defence on two grounds of argument-First. They alledge, that they have produced sufficient testimony to prove that the brigs Achilles, Patty and Hibernia were within fight when the Argo engaged and captured the Betsey, and thereby acquired a property in the prize, according to the maritime law; and alledge, *68that as their interest in the booty: was much greater than that of the Argo, they being three to one, they had a right to order the Betsey where they judged belt for their security and benefit; more especially as they had reason to doubt the fidelity of West, in whose possession they found her, on account of the falsehood he had told them;—inferring, that if any injury was done to the libellant, it only amounted to his proportionable share, for which alone they ought to be answerable. — Secondly. That many suspicious circumstances on board the Betsey, — such as, the British papers, the number of men on board agreeing therewith, and the declaration of West, that she had been captured three days before, contrary to their own observation, were sufficient to induce them to that the whole was an artifice, and therefore they were justifiable in taking her as original prize, and to consider themselves as the first captors.
These two positions of defence are supported by the testimony of W*69-D-, a passenger on board the Patty. This deposition, on which alone the respondents have relied, labours for the establishment of two facts, which are altogether incompatible with each other, viz. first, that the three brigs were in fight, when the Argo engaged arid captured the Betsey; and, secondly, that the Betsey had not been captured at all, or, at least, that the captains of the three brigs, had good reason to think so, and were therefore justifiable in taking her as original prize. One only of these positions can possibly be true ; therefore, a testimony which labours to establish both, may, at least, be said to prove too much.
The fact best supported by the circumstances seems to be, that the three brigs were in sight of the battle between the Argo and the Betsey. — What then was their conduct in this point of view? The next day after the engagement, of which they had been distant spectators, they come up under British colours; they find the Betsey in the possession, and under the protection, of the Argo, *70her captor — they chase away the Argo, and fire on the prize, still wearing their British colours — they board her, take out all the people placed on board by the libellant, man her with part of their own crews, give her in charge to their own prize master, and order her for Philadelphia. Could the being in sight of the engagement the day before, justify such a procedure? Surely it could not. It is manifest that the rule of law respecting vessels in fight of a capture, does not refer to what may have been seen by the claimants, but by the people on board the prize ; for the rule is founded on a presumption, that the people on board the captur’d vessel, seeing others coming up armed and prepared for battle, were thereby induced to surrender.
Further, I can on no account admit; the doctrine, now for the first time advanced, and unsupported by any authority whatever, that captains, claiming a share in the prize they may have seen captur’d, have a right to order the vessel taken where they please, by virtue *71of a majority of votes, or of their superior interest in the captur’d booty. Their claim must follow and depend upon the success of the real captor. Besides, in the present case, the libellant, who fought for, and alone took, the brig Betsey, had at least some share in the prize: the captains of the three brigs, therefore, ought in justice to have left his prize master on board to prosecute the Argo’s claim— which was not done.
Upon the whole, this seems to have been an act of such unjustifiable violence and wrong on the part of the brigs Achilles, Patty and Hibernia, that I am clear in deciding in favour of the libellant in this cause : and having carefully endeavoured to ascertain the value of the property lost, I find,
*72
Judgment in favour of the libellants for £.12791 - 5, with costs of suit.
NO discrimination was, in this cause, attempted to be made respecting the three captains of the brigs Achilles, Patty and Hibernia ; so that the principal facts are *73attributed to all, and the judgment was general against the respondents.
The cause was carried by appeal to the Court of Appeals established by Congress in prize causes ; but that Court rejected the cause, it appearing to them to be a suit between a citizen and citizen for damages merely. — This Court was soon after dissolved, on account of the peace — Talbot's cause was then carried into the High Court of Errors and Appeals for the commonwealth of Pennsylvania, where, after long arguments, as well to the jurisdiction as to the merits, a decree past in favour of the appellees, for £.11,141-5-4, with costs.
See the Appendix for the testimony exhibited in this canse.
According to W-D-'s deposition.