TO READERS AND CORRESPONDENTS.

WE are preparing for the ensuing number of this Journal the following articles :

A comprehensive view of the proceedings in the case of Olmstead.

A review of the celebrated Napoleon code.

A translation of a chapter of Dr. Duck's treatise De usu et authoritate juris civilis Romanorum, &c. The part which we have selected contains an historical account of the rise and progress of the Civil Law in England.

Some important State Laws. In this department of the Journal, there has been an apparent neglect; but the Editor is not the first who has been deluded by the word of promise, which has been kept only to the ear or failed in its promised largeness.

To an honourable Judge in Carolina and another in Georgia we return our thanks for their communications, and the obliging manner in which they were transmitted.

We are also indebted to an anonymous correspondent in New-York for a pamphlet.

The interesting paper respecting the Connecticut Laws has been mislaid. May we hope that our Harford friend will pardon our inattention and transmit another copy.

In VOL. I. p. 213 a reference to a decision by CHIEF JUSTICE EYRE is erroneously inserted in the margin. It belongs to the text and should have been inserted after the 24th line. We regret that we have not room in the present number for an article of literary intelligence.

Messrs. Farrand & Co. have put to press a new edition of Bacon's abridgment, with all the subsequent decisions in Great Britain and this country. They are preparing Comyns for publication in the same manner. They are also making arrangements for reprinting the whole, we believe, of Lord Coke's legal writings. The merit of Chitty is attested by a second, and much enlarged edition, from the same press, of his valuable treatise on Bills of Exchange.

Vice Admiralty Court of Antigua.

THE

TORTOLA, AUGUST 6, 1808.

HE case of the schooner Derne, Alexander, Thompson master, taken on the 5th of July, 1808, by his Britannic majesty's frigate Ethalion, commanded by captain Fahie, on her homeward bound passage from Guadaloupe to Baltimore.

The following is the decision of judge Robinson, after a deliberation of two days.

I have given the case of the schooner Derne, Thompson, master, and authorities cited, the agreements adduced, and the evidence and documents, the best consideration in my power. It is out of the usual range of cases that have hitherto engaged the attention of this court. Three causes have been assigned on the part of the captors as implicating the property in question, any one of which being established they contend is sufficient for the purpose of their clients. First the vessel had been dealing in navy bread and salted provisions, articles contraband of war, with the enemy at an enemy's port: next that she had been employed in the coasting trade, and had been trading from Bay Mahon to Bassaterre, two ports of the enemy in Guadaloupe, contrary to the instructions of January, 1807; and lastly, that the vessel was fitted for war, had gone to a port of the enemy, continued there a considerable time in an ambiguous character, afterwards proceeded to another port, took on board a cargo not properly documented and was taken returning, having a manifest intention of resisting the visitation and search of British cruisers, when it could be done with any probability of success, which is a departure from neutrality and the assumption of a hostile character, that will subject the whole property in question belong to whom it may to condemnation. With respect to the provisions disposed of at Guadaloupe said to be of a contraband nature, I have alrea dy delivered my sentiments that it can work no harm, being VOL. II.

R

arming was that war was expected between America, England, or France. That it was such that she might defend herself in either event, and yet she sails for a French island; had she gone to a neutral country it might have been permitted. I apprehend a vessel so circumstanced ought not to go to the country of either power she apprehends war with; because the other party in such case in my judgment has good cause to construe such conduct illicit and unneutral: and a manifest intention of taking, (should a war ensue) an active and decided part against him, which the laws of war do not in my apprehension admit. All circumstances combined, lead me to conclude that the present vessel was sent out either for sale or as a cruiser; or, to cruise against England; that the parties must have had in contemplation a war with England and not France; for, in the latter case, it would be sending the vessel to certain condemnation. I am also inclined to think the court is not in possession of all the facts of this case as to what was actually meditated with this vessel. The cargo she had on board could have been no object; the number of men I conceive to have been more than necessary for an ordinary trading; and although true it is, she was on the return voyage, when whatever might have been originally the design is to be considered as abandoned; to me it may be so, but I am not altogether satisfied that it was wholly so; on the contrary the conduct of the parties seem to me such that had they on the return met a vessel of inferior force, or such a vessel as could have been resisted with a prospect of success, I am disposed to think resistance would have been made; and that the original hostile purpose was still in existence. The property of the cargo I am not satisfied with. The usual affidavit does not accompany it. It would not have been conclusive certainly if it had been; but why depart from prevailing practice, which can do no harm. The whole of this case, in my judgment, is so unfavourable to the claim interposed, as to induce the court to reject it, and decree condemnation of the property in question in the first instance; and I feel it my duty to do so. The parties concerned have in their option to clear up this myste

rious business before a higher and more enlightened tribunal, if they think it advisable to do so.

Halifax-Court of Vice Admiralty.

JANUARY 26th, 1808.

The Rights and Powers of CAPTORS and PRIZE AGENTS, over Captures and Proceeds, before final Sentence, considered: being the substance of a Judgment upon the return to a Monition in the Case of the Herkimer.

THE

DR. CROKE.

case which now remains for the decision of this court, arises upon a monition issued against Andrew Belcher, esq. "to bring into the registry the sum of £.41,671 19s. 4d. being the proceeds of the ship Herkimer and cargo; and also interest thereon at the rate of five pounds per centum per annum, to commence from six months from the day of sale; or to show cause why he should not pay the same." This vessel and cargo were condemned on the 1st of August, 1806; and an appeal was entered on the 6th of the same month. A decree of unlivery and appraisement was sued out; and, on the return, the valuation of the ship appeared to be .3000, of the cargo £.37,896 5s. 3d. making in the whole £.40,896 5s. 3d. currency. A motion was made by the captors to take the property upon bail, but difficulties having occurred in procuring securities, the parties jointly prayed the court to direct a sale of the property, and the proceeds to be paid into the registry. The commissions for the sale of ship and cargo issued on the 18th and 27th of September, returnable in the usual form in one month. The sale by public auction was made on the 29th of September, 1806, by Messrs. Hill & Co. The conditions were, that the purchase money should be paid in six months, when Mr. Belcher became the purchaser of the ship, and the greater part of the cargo, for the sum of £.41,671 19s. 4d. The marshal returned the commission of sale, without the proceeds, which he alleged

were in the hands of the purchaser, to whom he had applied for payment, but without effect. Upon the 23d September, 1807, a general order of the court was made for all purchasers of prize goods to pay in the proceeds. No notice of this order was taken; a second general order was then made upon the 29th of December, and a monition was issued against Mr. Belcher. To this monition an appearance has now been given under a protest against the jurisdiction of the court, which it will be necessary first to consider, because if the court has gone beyond the line of its authority, the party is entitled to his dismissal.

The substantial part of the protest alleges, "that the said ship Herkimer and her cargo were sold at public auction by Charles Hill & Co. of Halifax, auctioneers, in pursuance of an advertisement inserted in the public newspapers of Halifax inviting purchasers to the said auction; that the proponent was one among the bidders at the said auction, and being the highest bidder for the said ship and cargo, did purchase the same of the said Charles Hill & Co. for the sum of £.41,671 19s. 4d. and received from him a bill of parcels of the said purchase in the name of the said Charles Hill and Co. as auctioneers, and not as persons acting under the authority of this worshipful court, as appears by the said bill of parcels hereunto annexed, and the proponent humbly submits that the said Charles Hill &Co. alone can be entitled to enforce the payment of the said £.41,671 19s. 4d. so bid by him for the ship Herkimer and cargo as aforesaid. This proponent therefore humbly prays the judgment of this worshipful court, whether he the proponent is bound to submit to the jurisdiction of this court in the matter of the said monition."-" Sworn to and signed by Andrew Belcher"

In arguing upon this protest, it was assumed by counsel that the contract of sale was made merely with the auctioneer, and the sale itself not under the authority of the court of admiralty; I do not think it at all material to the case, but the facts will not bear them out in this assumption. The advertisement in the public papers expressly stated the sale to be made by