Fitzsimmons

V.

Tunno & Cox et al.

cause mentioned in the libel, or in the decretal part of Williamson & them? It is impossible. The law is therefore very clear, that if a decree is founded on matter not put in issue by the pleadings, such decree is not conclusive, but may be opened for further evidence. Park, 353. 356. Upon this ground, it was determined, after solemn argument in this court, in

363.

the case of Blacklock & Bower v. Stewart et al. that the circuit See ante, court was regular in opening a decree, and permitting the parties to go into evidence, on account of the ambiguity or uncer tainty in the proceedings, and because the decree was founded on matter not put in issue by them. This point has therefore been settled in the above case, and in several others determined in the circuit courts in Charleston district, which have never been brought up by appeal to this court; the parties having acquiesced in the verdicts of the juries.

On the other ground respecting the breach of blockade, it was very clear she ought not to have been condemned. The article in our treaty with Great Britain expressly declares, "That such vessels as might be bound to a port or "place blockaded, may be turned away from such port or "place, without being liable to seizure or confiscation, un"less after notice of such blockade the vessel should again at"tempt to enter." This article is founded in justice, as wlas in the nature and reason of things, and is most certainly agreeable to the spirit of the law of nations. It guards against surprise, and is calculated to prevent an innocent neutral from being entrapped by trading to a place where it was previously lawful, not knowing of such blockade. By this article, notice of the blockade, and turning away, or in other words, an order to depart, must precede the attempt to enter a second time; and no vessel is liable to seizure unless she attempts again to enter a blockaded port, after being warned to depart. Now in the present case, there is no proof of any such attempt to enter after notice to depart; for the conversation between the admiral of the fleet and the captain, was on board of the admiral's ship, while the captain was not in his own vessel. And it appears, she was sent into Gibraltar only for words

Park v. Alexwood v. Teas

ander, Black

dale.

V.

Tunno & Cox et al.

Williamson & which passed in a conversation between them, in answer to Fitzsimmons a question put by the admiral," saying he would go into "Cadiz unless he got new orders;" but there is no proof of his ever having attempted it, or having offered to go towards the port afterwards; so far from that, on the contrary, it does not appear that the captain ever got posssesion of his ship again, so as to have any power over her, as she was immediately ordered away to Gibraltar, and there condemned as a prize to the squadron. So that there was no act done by the captain of the ship, which could subject her to capture, either by the law of nations, or our treaty with Great Britain. And it is the first time in the history of nations, that ever a valuable ship and cargo were condemned, for bare expressions or intentions, which were never carried, or attempted to be carried into execution. They admitted, that if the captain had been suffered to have returned on board of his own ship, and attempted to have entered the port of Cadiz afterwards, the ship would have been a lawful prize. But the decree itself does not state that she attempted to enter the port after having been duly warned away; only that the captain persisted in an intention to enter. That a bare intention to do a thing, or persisting in such intention, without ever attempting to put it in execution, is a nugatory thing; even in treason, a bare intention without some overt act will not constitute the offence.

The Judges, after fully considering this case, were all of opinion, that the presiding judge on the trial, very properly opened the decree of the vice-admiralty court at Gibraltar, and permitted the parties to go into evidence, as the facts stated in the decree did not amount to a justifiable cause of condemnation; and also, because there was ambiguity and uncertainty in the proceedings, the libel stating, that the vessel and cargo were enemies property, and the decree condemning for breach of blockade. It was very clear therefore, for these reasons, that this decree was not conclusive, as was determined in the case of Blacklock and Bower v. Stewart et al. and in several other cases, and as laid down

Fitzsimmons

in Park, 353. 356. And from the evidence offered in the Williamson & case, it appears she was not liable to capture and condemnation, either on the ground mentioned in the libel, or in that of the decree.

With respect to the cause stated in the libel, to wit, that the ship and cargo were enemies' property, there was no proof even alleged that she belonged to the enemies of Great Britain; on the contrary, it was clearly proved that they were the bona fide property of the plaintiffs, citizens of America, so that on this ground there was not a shadow of reason for condemnation; indeed, the sentence for breach of blockade seems to admit the fact, by abandoning that ground, and condemning on another of a very different nature. And as to the breach of blockade, the reason assigned in the sentence of condemnation, that seems to be as groundless as the allegation in the libel; for, from the evidence offered on that head, she did not attempt to enter the port of Cadiz after being warned by the blockading squadron. The only evidence relating to that subject, was what passed between the captain and the admiral, on board of the flagship, when the former was under examination, while the captain was in the nature of a prisoner, and when he had no control or command over his own vessel; in answer to a question asked him by the admiral, where he intended to go if he released his vessel, he replied, that he intended to enter Cadiz, unless he got contrary orders; upon this the admiral ordered his ship to Gibraltar.

This verbal declaration of the captain to the admiral, in his then situation, was no ground certainly for seizing his ship. The treaty between Great Britain and this country is express on this point: "That an American vessel sailing "to a blockaded port, not knowing of the blockade, shall "not be detained, nor her cargo (if not contraband) be con"fiscated, unless after notice she shall again attempt to en"ter, but shall be permitted to go to any other place she may think proper."

This is a fair exposition of the law of nations on the subject, as it prevents an innocent neutral from seizure and con

V.

Tunno & Cox et al.'

Fitzsimmons

V.

Tunno & Cox et al.

Williamson & fiscation, who may approach a besieged place, not knowing of a blockade. The bare declaration of the master, unaccompanied with any fact corroborative of such his intention, was not a ground of seizure; besides, free agency was wanting in the case, to constitute the offence, for he was in the nature of a prisoner, not in the possession or command of his vessel, or having any control over her at the time when these expressions were uttered; and unless there had been a second attempt to enter into the port of Cadiz, there could be no offence against this treaty. But what is most remarkable in the case is, that the reason assigned in the sentence of condemnation is not an offence against the treaty. She is condemned for persisting in an intention of entering; this is no offence under the treaty; it is no cause of seizure mere loose parlance, unconnected with any fact. It is evident, therefore, that she was not condemned for any cause justifiable in its nature, or by the law of nations, or by the treaty subsisting between the two nations If the condemnation had been for attempting to enter, after being warned, it might have been a good cause of capture; but persisting in an intention alone, is no cause of capture. Therefore the sentence, upon the face of it, if there were no other grounds in the case to open it, would have been sufficient.

New trial refused, and rule discharged.

Present, GRIMKE, BAY, JOHNSON, TREZEVANT and BRE

VARD.

DAVID SMITH against JOHN HART, Sheriff of Charleston

District.

SPECIAL action on the case for an escape. Verdict for plaintiff. Motion for a new trial.

District,1802.

Upon an escape for neg. ligence, if defendant is in on a capias ad satisfacienbecomes the sheriff; but if

dum, the debt

This was a special action on the case against the sheriff for negligently suffering a defendant to escape from gaol, who was in upon mesne process, per quod, the plaintiff lost his debt, &c. in which there was a motion for a new trial, on the grounds of misdirection in the judge (TREZEVANT) who tried the cause, and also that the verdict was against where the da

law.

debt of the

in on mesne

process,

mages are unascertained, the jury may

think just and reasonable, alless than the though it be

The original cause of this action was the value of a horse give what they which Smith had sold to one Currie, for two hundred dollars. For this sum Currie was arrested and put in prison, but soon after broke gaol and escaped.

The present was an action against the sheriff of Charles

ton district, for negligence in permitting this man to escape

out of custody. On the trial, the sheriff, by way of mitigation of damages, in case the jury should be induced to find against him, proved that this horse, which originally cost two hundred dollars, was soon after the purchase sold again as low as ninety dollars, which, it was alleged, was as much as he was worth; and, therefore, as Currie was in upon mesne process, and the damages had never been ascertained, the jury might, in their discretion, give what sum they thought reasonable and just, or what they thought Currie was able to pay; and that this was not like a case where a debtor is in gaol on a capias ad satisfaciendum, and escapes, where the sum becomes the debt of the sheriff, and he becomes liable in numero for the amount; here the jury had a right to judge of all the circumstances, and to give considerably less than the full amount. In short, it was alleged, that in a case of this kind, the jury might take all things under their consideration, and assess the damages against the sheriff in the same manner as between the original parties;

demand, as in cases of insol

vency, or the like, &c. Insufficiency of the gaol not

a

sufficient exriff in an action

cuse for a she

for an escape.