2. Her clearing out for the Cape of Good Hope while her real destination was Jamaica.

3. The continuance of the Short Staple in Hampton Roads until the arrival of the Ino.

4. Her capture on a coasting voyage which would not justify suspicion.

5. Her being carried to a port where there was a good market, and there given up; and,

6. That the William King, when carried to Jamaica, was also given up without being libelled.

That these circumstances are some of them such as to justify strong suspicion, and such as to require clear explanatory evidence to do away their influence, is unquestionable. But the Court cannot admit that any or all of them together amount to such conclusive evidence as to render it impossible to sustain the defence.

That the Ino should arrive in the port of Boston while the Short Staple lay in that port is nothing remarkable. It furnished an opportunity of concerting any future plan of operations with the owners of the Short Staple, or of any other vessel; but is certainly no proof of such concert. There is no evidence that the respective owners were acquainted or had any communication with each other; and the whole testimony -is positive that no such communication took place.

That the Ino should have cleared out for the Cape of Good Hope, when her real destination was Jamaica, is sufficiently accounted for. It enabled her to take on board a considerable quantity of provisions, an article in demand in Jamaica, which she would not have been permitted to do had her real destination been known. This may be a fraud in the Ino, but cannot affect the Short Staple.

That the Ino should have arrived in Hampton Roads while the Short Staple remained there, and should have followed her to sea, and have captured her, are unquestionably circumstances which justify strong suspicion,

BRIG

SHORT

STAPLE,

v. U.STATES.

BRIG and which would be sufficient for the condemnation of SHORT the vessel, if not satisfactorily explained: but it is not STAPLE, conceded by the Court that they admit of no explanav. tion. These circumstances are not absolutely incomU.STATES. patible with innocence.

T

It is proved by testimony to which there is no exception, and which no attempt has been made to discredit, that the Short Staple was absolutely wind-bound the whole time she remained in Hampton Roads; and that she attempted to put to sea before the arrival of the Ino, but could not. Had this capture ever been pre-concerted in Boston, the Ino and Short Staple would more probably have contrived to meet on the return voyage of the latter, than to have adopted the course of the one waiting in port for the arrival of the other, and then sailing out almost together,

The arrival of the Ino in Hampton Roads is completely accounted for. She had suffered by the perils of the sea, and put in for necessary repairs. This fact is proved positively, and no opposing testimony is produced.

That the Ino should have pursued the Short Staple on a coasting voyage, and have captured her, was a wrong not to be justified. It is said to have been so atrocious a tort, that its reality is incredible. The fact, however, is completely proved. The master of the Short Staple swears that he was on his voyage to Boston; that his intention was to proceed to that port; that he had had no previous communication with the Ino, and had no expectation of being captured by her, or of being turned out of his course. The other persons on board the Short Staple testify to the same facts, as far as their knowledge extends. The owner of the Ino, who was on board, and her officers, swear that they had no previous communication with the Short Staple or her owner; that there was no concert of any sort between them; that they were informed by some person on shore, while the Ino lay in Hampton Roads for repairs, that the Short Staple and the William King were on a vovage to a French island; that expecting to find something which would justify condemnation as prize, they determined to examine those vessels, and,

although, on examination, they found nothing to justify BRIC capture, they still hoped that something would appear SHORT in future; and that, at the worst, they should incur no STAPLE, risk of damages, because they should carry the vessels

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and cargoes to a good market. In this confidence, they U.STATES. determined to take them to Jamaica.

This disposition in the captors, however indefensible, is very probable. It grew out of the state of the two countries; and no individual who was captured in consequence of it ought, if his own conduct contributed in no degree to that capture, to be made the victim of it.

That she was carried into St. Nichola Mole, and there given up to the government of the place, is, in itself, a circumstance throwing some suspicion on the transaction, and requiring explanation. The testimony explains it. The Ino was separated from her two prizes by a fact which is fully proved, and which sufficiently accounts for that separation. That her captain should, when about to leave them, appoint some near port as the place of meeting again, was almost of course; and that he should have relinquished one of the vessels to the government of the place ceases to be matter of much surprize when it is recollected that he could not have much expectation of making her a prize; that, in fact, the capture was made with scarcely any hope of condemnation, but with a certainty that it would produce some additional supply of provisions, and could injure no person. The criminalty of this mode of thinking, whatever it might be, was not imputable to the owners of the Short Staple.

It has been contended that, during the separation of the Ino from the captured vessels, a rescue ought to have been attempted. There having been, during that period, but three persons belonging to the Ino on board the Short Staple, they might have been overpowered by the American crew; but the attempt to take the vessel from them was no part of the duty of the Americans, and might, in the event of re-capture, have exposed the vessel and cargo to the danger of condemnation, of which, without such rescue, they incurred no hazard.

The abandonment of the William King without li

BRIG

belling her, is the natural consequence of having been SHORT able to find no circumstances of suspicion which might STAPLE, tempt the captors to proceed against her. It undoubtυ. edly proves, what the captain of the Ino avows, that he U.STATES. acted under a full conviction of being exposed to no risk by the capture, though he should reap no advantage from it.

Under the act

of congress to

The interest which coasting vessels had in fictitious or concerted captures, undoubtedly subjects all captures to a rigid scrutiny, and exposes them to much suspicion. The case of the Claimant ought to be completely made out. No exculpatory testimony, the existence of which is to be supposed from the nature of the transaction, ought to be omitted. The absence of such testimony, if not fully accounted for, would make an impression extremely unfavorable to the claim. But where the testimony is full, complete and concurrent; where every circumstance is explained and accounted for in a reasonable manner; where the testimony to the innocence of the owners and crew of the vessel is positive, proceeding from every person who can be supposed to have any knowledge of the facts, and contradicted by none; the Court cannot pronounce against it. This would be to allow to suspicious circumstances a controling influence to which they are not entitled.

The sentence of the Circuit Court, condemning the Short Staple, is reversed and annulled, and the cause remanded to that Court with directions to decree a restoration of the vessel to the Claimants, and to dismiss the libel.

STORY, J. stated that he dissented from the opinion of the Court and adhered to the opinion which he gave in the Court below, in which he had the concurrence of one his of bretheren.

PARKER v. RULE'S LESSEE.

Absent....JOHNSON, J. and TODD, J.

ERROR to the Circuit Court of the district of

lay and collect West Tennessee, in an action of ejectment.

The facts of the case were thus stated by the chief PARKER justice in delivering the opinion of the Court:

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RULE'S

This was an ejectment brought by the Defendant in LESSEE. error in the Circuit Court of the United States for the district of West Tennessee. The Plaintiff below claim- a direct tax,

before the col

an unknown

was necessary

copy of the

statement of

tax, and the

gazettes of the

ed under a patent regularly issued by the proper au- (July 14,1798) thority. The Defendant made title under a deed, from lector could the collector of the district, reciting a sale of the said sell the and of land as being forfeited by the non-payment of taxes, proprietor for and conveying the same to the purchaser. On the va- non-payment of the tax, it lidity of this conveyance the whole case depends. At the trial the Defendant produced his deed, and also a that he should general list of lands owned, possessed and occupied on advertise the the first day of October, 1798, in assessment district lists of lands, No. 12, in the state of Tennessee, corresponding with &c. and the the collection district No. 8, returned to the office of the amount the late supervisor of the revenue for the district of due for the Tennessee by Edward Douglass, surveyor of the reve- notification to nue for said assessment district, among which is the fol- pay, for 60 lowing: "Grant John, reputed owner in Sumner coun- days in four ❝ty on the middle fork of Bledsoe's Creek, 640 acres state, if there "of land subject to and included in the valuation, valu- were so many. "ed at $2,560, no possessor or occupant." He also produced the tax list furnished by said surveyor to Thomas Martin, collector of the collection district No. 8, in which list said land is described in the same manner as in the said general list, excepting that the said John Grant is described as possessor or occupant of said 640 acres of land, and said land is included in the list of lands belonging to residents. He also produced the advertisements of the sale of the said lands, mentioned in the said deed to have been made in the Tennessee Gazette, in which said John Grant is mentioned only as reputed owner of said land, and proved, by a witness present at the sale, that the said Henry Bradford, for himself and Daniel Smith, became the purchaser of the said land; and that the said Daniel and Henry, before the execution of the said last mentioned deed, assigned their interest in the said land to the Defendant, Richard Parker. But it did not appear that the said collector had, at any time, caused a copy of the said list, with a statement of the amount of the tax, and a notification to pay the same, to be published for sixty days in four gazettes of the state, if there were se VOL. IX.

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