Cushing v. Laird

6 F. Cas. 1024 | S.D.N.Y. | 1873

BLATCHFOED, District Judge.

On tbe IGth of June, 1SS5, the United States filed a libel, in admiralty, in tbe district court of the United States for tbe southern district of Florida, against tbe steamer Wren and her cargo, alleging, in the libel, that certain persons, citizens of tbe United States, on tbe 12th of June, 1SG5, captured tbe Wren and her cargo, on the high seas, as prize of war; that tbe captured property had been brought into Key West, in said district; and that it was lawful prize of war, and subject to condemnation and forfeiture as such. It prayed a condemnation of tbe property. An attachment was issued against tbe Wren and ner cargo, and was returned duly executed. A monition, in tbe usual form, was also issued, returnable June 27th, and was returned duly executed.

On tbe 2Gth of June, 1SG5, a claim and answer signed “Edward C. Stiles, master British steamer Wren,” and duly verified, was filed in tbe cause. It 'says: “And now comes Edward C. Stiles and says, that be is tbe master of tbe said steamer Wren, and, as such, is tbe lawful bailee of said steamer, her tackle, apparel and furniture, and claims the same for tbe owner thereof; and be further says, that John Laird, a lawful British subject, residing in England, is the true and bona fide owner of said steamer, and that no other person is tbe owner thereof, as appears by tbe register of said steamer, now in possession of the court, and as be is informed and believes.” Tbe answer also denied, that tbe steamer was prize of war, and averred that she bad no cargo, and prayed restitution.

On tbe 10th of August, 1S65, a decree was made in the cause, in these words: "A claim having been interposed for this vessel and cargo by Edward C. Stiles, master of said vessel, for and on account of John Laird, tbe younger, a British subject, and this cause having been beard on tbe libel and proofs and testimony taken in preparatorio, and pleadings of tbe claimant, and all due proceedings having been had, and tbe court being fully advised in the premises, and it appearing to tbe court that tbe said steamer Wren, her tackle, apparel, furniture and cargo, were, at tbe time of capture, tbe property of enemies of tbe United States, it is now ordered, adjudged and decreed, that the said steamer Wren, her tackle, apparel, furniture and cargo, be condemned and forfeited to tbe United States, as lawful prize of war.” Tbe decree also ordered a sale of tbe property.³

From the testimony in the prize cause, It appears that the main question in issue was, whether the Wren belonged to Laird, a subject of Great Britain, residing in Liverpool, and was bona fide neutral property, or ■whether she was really the property of the government of the Confederate States, or of the firm of Frazer, Trenholm & Co., acting for and representing such government. A certificate of registry was found on board of the Wren, at the time of her seizure, dated at Liverpool, December 24th, 1SG4, signed by a registrar, which specified December 24th, 1SG4, as the date of registry, and stated that the Wren was British built, and was built by Laird Bros., at Birkenhead, in 1SG4, that her port of registry was Liverpool, that John Laird, the younger, - of Birkenhead, shipbuilder, was the owner of the whole of her, and that William Raisbeek was her master. The Wren, when seized, was on a voyage from Havana to Halifax and Liverpool. She was seized by persons forming part of her crew. She had previously been engaged in running the blockade, into Galveston, Texas, from Havana, and, a short time before she began the voyage on which she was seized, she had entered the port of Galveston, discharged a cargo, taken one of cotton on board, and carried it safely to Havana. From the decree of the prize court an appeal was taken, on behalf of the claimant, to the supreme court of the United States. On the lGtli of October, 18G5, a writ of sale was issued, under which the vessel was sold. The proceeds of sale, amounting to $37,108 50, were deposited with the assistant treasurer of the United States, at New York.

The appeal was heard by the supreme court, and it reversed the decree of the court below. The case is reported in G Wall. [73 U. S.] 582. In the decision of the supreme court, as reported, the question is stated to be, whether the vessel was the property of the enemies of the United States. It is also stated therein, that the certificate of registry shows that “the claimant” (Laird) is “the. builder of the vessel and owner;” that “the proofs show, with reasonable certainty, that his” (Laird’s) “registered master brought the. vessel to Havana, and was there engaged in command of her within three months after' she was launched and fully equipped for the voyage, and which was within three months of the time when she was seized, as prize, by. her crew.” The decision proceeds: “It is quite apparent, therefore, upon the proofs, that the claimant” (Laird) “not only built the vessel, but put his master in command, in this, her first voyage, and the presumption would seem very strong, if not irresistible' (nothing else in the case), that he continued the owner for the short period of six months which elapsed after she was built, and before the seizure took place. In addition to this, she was in the command of a master” (Stiles) “claiming to represent Laird as own-er. These acts, in connection with the registry, afford strong evidence that the title of the vessel was in the claimant.” The decision, then, after holding, that most of the proofs relied on to disprove such evidence were “inadmissible and incompetent as testimony in a court of justice” because they did “not rise to the character or dignity of testimony in any court that respects the law of evidence,” goes on to say: “We agree, that, in the facts and circumstances surrounding and attending the history and operations of this vessel, and of the individuals connected with her, there are matters for well-grounded suspicion and conjecture, as it respects the purpose and intent with which the vessel was originally built and sent to Havana; and, as she entered immediately on furnishing supplies to the enemy and receiving cargoes of cotton in return, it is not unreasonable or unnatural to suspect, that the so-called Confederate States, or their agents, had some connection, if not interest in her. But this alone is not evidence on which to found a judgment, in the administration of justice. The facts, that the master, Stiles, who was put in command of her for the voyage home, from Havana to Liverpool, was an officer in the enemies’ naval service, and had belonged to the United States navy, and Helms, who was in some way, not explained, connected with her voyages in running the blockade, and who was the agent of the enemy at Havana, might well be entitled to consideration and weight on the question, if there had been any legal proof in the case laying a foundation for such a conclusion. So, also, would the evidence that Stiles destroyed, at the time of the capture, a letter from Helms, agent of the ship, as he calls him, to himself, and an order for the payment to him of £40, on the delivery of the ship at Liverpool. But, in the view we have taken of the case, there is no foundation of legal proof of the ownership of the vessel in the Confederate States, on which these circumstances can rest, or be attached, as auxiliary considerations, to influence the judgment of a court”

From the language of the decision of the supreme court, it is apparent, that, from the fact that Laird built the vessel, and that she was registered in his name as builder and owner, and that the master named in the certificate of registry brought her from Liverpool to Havana, and was in command of her at a time less than three months after her registry, and less than three months before her seizure, the court presumed, because there was no competent evidence to the contrary, that Laird continued to be the owner of the vessel at her seizure, especially as Stiles claimed to represent Laird as owner. On this the court concluded that, as Laird was a British subject and was not shown to be the representative or agent of the Confederate government, the vessel was not enemies’ property at the time of her seizure. It is also apparent, that the court thought, that, on the facts and circumstances disclosed by the proofs, there was good ground for suspicion that the Confederate government, or its agents, had some connection with, or interest in, the vessel, but that there was no legal proof of the existence of such connection or interest, so as to uphold the decree condemning the vessel as enemies’ property.

The master, Stiles, in his deposition, in the prize case, in answer to the interrogatories in prize, states, that the vessel “belonged to one Laird, Junior, as he inferred from the register, and was informed;” that “he believes that one Laird, Junior, was owner of the vessel at the time she was seized;” that “he only knows that from the register,” and that “the deponent was engaged to take the vessel to Liverpool and deliver her there to Frazer, Trenholm & Co.” The master, also, in that deposition, speaks of Helms as “the agent of the vessel” “at Havana;” and the supreme court, in its decision, speaks of Helms as “the agent of the enemy, at Havana.”

It appears, by the evidence in the present case, that Foster and Thomson, after the decree of condemnation was made, were retained by one Charles K. Prioleau, who has for many years been a member of the firm of Frazer, Trenholm & Co., to attend, on behalf of Prioleau, to the prosecution of the appeal to the supreme court. Foster and Thomson do not know Laird, and never saw him, and never had any communication or correspondence with him, written or verbal. On that retainer, Foster and Thomson caused the transcript of the record on the appeal from the district court in Florida, to be sent to the supreme court, and made the necessary deposit of money with the clerk of the latter court, and employed counsel to argue, and who did argue, the appeal in the supreme court, and they have paid such counsel for his services.

The brief of such counsel, filed in the supreme court, on the appeal, asserts it to be shown by the record, that the Wren was never sold or transferred, and was owned by Laird, the younger, at the time of her seizure; that she was owned in England, by an Englishman, and had never been owned by any one else; that she was at all times the prop-. erty of a British neutral; and that, therefore, she was never the property of enemies of the United States. It was not disclosed to the supreme court by Foster and Thomson, or by Prioleau, that, prior to the seizure of the vessel, Laird had parted with all his interest in the vessel, or had sold and conveyed her to Prioleau, or that Prioleau had any interest in her at the time of her seizure.

The case was decided by the supreme court on the 23d of March, 1868. The mandate of that court designates the suit as one between the United States, libellants, and “the steamer Wren and cargo, and E. C. Stiles, claimant, respondents.” It recites the decree of the district court in the suit, and then orders that such decree be reversed, and that the cause be remanded to such district court, “with directions to restore the vessel and cargo to the claimant, but without costs,” and then commands such district court that such further proceedings be had in the cause in conformity to the opinion and decree of the supreme court, as ought to be had.

Foster and Thomson received such mandate, and then drew a power of attorney to be executed by Laird and Stiles, and caused it to be sent to Prioleau, with instructions that he should procure it to be executed by Laird and Stiles, and should cause it to be returned to Foster and Thomson. It was so executed. It bears date July 2d, 1868, and was returned, executed, to Foster and Thomson. By its terms, Laird and Stiles appoint Foster and Thomson their attorneys, “to receive and collect from the United States government, or any branch or officer thereof, or any depositary thereof, any and all moneys, the avails or proceeds of the sale of the steamer Wren and her cargo, sold under decree of the district or circuit court of the United States, at Key West, in the southern district of Florida, by the marshal of the United States for the said district, the. said decree having been reversed by the supreme court of the United States, on appeal, and this power having been given to our said attorneys for receiving restitution of the avails of the said steamer Wren and cargo.”

On the 28th of December, 1868, the libel-lants in this suit filed in the district court of the United States for the southern district of Florida, a libel, in admiralty, against John Laird, the younger, for the same cause of action that is sued on in this suit, and praying the same relief. On the 5th of January, 1869, Foster and Thomson wrote to Mr. Doekray, an attorney in Florida, advising him of such suit in Florida, and employing him to obtain for them the funds in court in The Wren Case, and directing him not to enter a general appearance for Laird in the suit in Florida, but only to move specially to set aside the process and any attachment against the Wren fund. On the Cth of January, 1869, the court in Florida ordered process to issue in such suit, returnable on the 3d of May, 1869. Such process was issued on the 7th of January, 1869, and was a warrant of arrest bailable in the sum of $44,622. On the same day such warrant was returned, not served. On the 26th of January, 1869, Foster and Thomson sent to Mr. Doekray a copy of the said power of attorney from Laird and Stiles, in a letter to him which said: “We lay stress on this, as the particular object we have in the matter is to receive the money under it,” the power of attorney, “and we wish to have the judge’s check so drawn, that we, as attorneys, may collect it.” On the 20th of February, 1869, in the suit in Florida against Laird, an attachment was issued against “the proceeds of sale of the steamer Wren, now on deposit with the assistant treasurer of the United States, in the city of New York, and subject to the order of this court,” returnable May 3d, 1869. This attachment was executed by serving a copy thereof, on the 4th of March, 1869, on the assistant treasurer of the United States at New York. On the same 20th of February, 1869, a monition, in the suit in Florida against Laird, was issued, returnable May 3d, 1SG9, and was afterwards returned as served by publication in a newspaper published at Key West, and by posting there. Negotiations took place between Foster and Thomson and Mr. Ward, who represented the libellants in the suit in Florida against Laird, and who also represents them in this suit, respecting a disposition of the Wren funds which should transfer them to the' city of New York in such manner that process of attachment in this suit should be served on them, and, on the 24th of February, 1869, Foster and Thomson wrote to Ward, suggesting that the district judge in Florida should forward to them his check on the assistant treasurer in New York for the proceeds of the Wren, and that they should draw the funds under their authority from “the claimants, Laird and Stiles,” and keep the proceeds in their hands sufficiently long to enable Mr. Ward to serve upon them such process or papers as he might be advised. This proposal appeal's to have been substantially agreed to by Mr. Ward, for, on the 12th of March, 1869, he wrote to Mr. Bethel, his attorney at Key West, directing him to “make no objection to the forwarding by the judge,” to Foster and Thomson, “of the check for the proceeds of the Wren, in accordance with the mandate of the supreme court,” and saying: “Until otherwise advised, hold the suit where it is, staying further proceedings for the present, but do not discontinue, if necessary to enable the .court to forward the cheek, stipulate as may be proper. I enclose a copy of a letter from Messrs. Foster and Thomson to their attorney” (the letter of March 13th to Mr. Dock-ray, next mentioned), “for your information. Advise me by telegraph the day the check leaves Key West.” On the 13th of March, 1869, Foster and Thomson wrote to Mr. Dock-ray, advising him that Mr. Ward had decided to make no objection to the forwarding by the judge to them, of his check for the money, and enclosing to him a copy of the letter of the 12th, from Mr. Ward to Mr. Bethel, and directing him to obtain the check payable to their order, and to forward it to them. On the 18th of March. 1S69, Dockray, who was attorney of the United States for the southern district of Florida, wrote to Foster and Thomson, saying: “In the case of the steamer Wren, John Laird, owner, &e., I would have written you several weeks ago, if I was at liberty to take any action in your interest. While representing the government, and bound by the instructions of the attorney general, it has not been possible for -me to serve you as indicated in yours -of the 5th of January last Before the mandate of the supreme court of the United States reached the clerk of the court at Key West, the-acting United • States attorney had filed a petition, in a cause of possession, against the proceeds of the sale of the Wren, the monition being returnable December 1st, 1868. The attorney general, however, directed that no default be taken, nor any other steps, without further instructions. The matter seems to be in a shape to enable you to secure the benefit of the mandate of the supreme court of the United States by proper management It is certainly my duty to obey the terms of the decree of the supreme court, as it also is to promptly and efficiently execute any instructions I may receive from the attorney general. If you will communicate with Senator Osborn, of Florida, at Washington, immediately, you may be able to obtain definite ins tract ions to be forwarded me from the office of the attorney general. I am precluded at present from taking any steps without further directions.” On the 23th of March, 1869, Foster and Thomson wrote to Mr. Dockray, saying, that they had been informed that directions had been sent from the office of the attorney general to discontinue the suit brought in behalf of the United States against the proceeds of the Wren, and adding: “These directions, together with the withdrawal of opposition by Messrs. Cushing, will, no doubt, enable you to obtain and forward the judge’s check to our order.” On the 26th of March, 1809, Mr. Dockray wrote to Foster and Thomson, saying that he should move to set aside the process and attachment in the suit brought by these libellants against Laird, in Florida, for want of jurisdiction. On the latn or April, 1SG9, the mandate of the supreme court, and a certified copy of the power of attorney from Laird and Stiles to Foster and Thomson, were filed in the court in Florida, the latter paper being ■ filed by Mr. Dock-ray. Some delay took place in the receipt, by Mr. Dockray, of the instructions from the office of the attorney general to discontinue the proceeding in the suit referred to, but they were received by him on or before the Sth of May, 1S69. On that day Mr. Ward telegraphed, to Mr. Bethel, directing him to consent absolutely to forwarding to Foster and Thomson the judge’s check for the proceeds of the Wren, drawn to their order, and to require no bond or stipulation. On the same day, Mr. Dockray, in the prize court, in Florida, in the prize case, as “attorney and proctor for John Laird, claimant,” exhibited to the court the mandate of the supreme court, and moved for a final decree in accordance with the requirements of the mandate. On the same day, in the suit in Florida brought by these libellants against Laird, a paper was filed in the court, entitled in the suit, and signed, “.John Laird, by F. A. Dockray, attorney and proctor,” and reading thus: "And now comes John Laird, the respondent in this cause, and makes his general appearance herein, and claims the proceeds in the registry of this court, as attached in this suit.” The record of the court states that such appearance and claim were filed by Laird. On the same day, in the same suit, a paper was filed in the court, entitled in the suit, and signed, “John Laird, by F. A. Dockray, attorney and proctor,” and reading thus: “And now comes John Laird, by his attorney and proctor, F. A. Dockray, and moves the court for an order' dissolving the attachment herein.” Appended to, and filed with, this paper, was a consent signed by Mr. Bethel’s firm, as 'proctors for the libellants, consenting to such motion “absolutely and without stipulation or bond.” On the 10th of May, 1SG9, in the same suit, an order was entered, entitled in the suit, reciting that “John Laird, respondent herein, by F. A. Dockray, his attorney and proctor,” had moved for a dissolution of the attachment, and that the libel-lants, by their attorneys and proctors, had, in writing filed, consented thereto absolutely and without stipulation or bond, and ordering “that the attachment issued out of this court, upon the proceeds of the sale of the steamer Wren, now on deposit with the assistant treasurer of the United States at New York, be dissolved.” On the same day, in the prize court, in Florida, in the prize case, a decree was entered, reciting the former decree, and the appeal to the supreme court, and the action of that court, and the filing of its mandate, and stating that the costs and expenses, in the proceeding, amounting to $5.GOO SS, had been taxed and paid to the officers of the court entitled thereto, out of the proceeds of the sale of the steamer Wren, and then, “on motion of F. A. Dockray, attorney and proctor of John Laird, claimant,” decreeing that the remainder of the proceeds of the steamer Wren, amounting to the sum of 831,441 02, on deposit with the assistant treasurer of the United States at New York, and subject to the order of the court, “be paid to the said John Laird, claimant,” and, further, stating that it appeared to the court, “that Foster and Thomson, of the city of New York, are the lawfully authorized attorneys in fact of the said John Laird, claimant,” and then decreeing, “that the said proceeds be paid to the said Foster and Thomson.” The record of the court then proceeds: “Whereupon, checks No. 199, for $29,-869 02, and No. 200, for $1,572, were drawn in favor of Foster and Thomson, of New York, attorneys for Laird and Stiles, as against the proceeds of the steamer Wren, on deposit with the assistant treasurer of the United States at New York, which checks wore delivered to F. A. Dockray, Esquire, attorney for Foster and Thomson, and attorney in fact for John Laird, and his receipt therefor taken.” The receipt is entitled in the prize suit, and is signed, “F. A. Dockx'ay, attorney for Foster and Thomson, of New York, attorney in fact for John Laird, claimant,” and is a receipt for the two checks as-drawn by the judge on the assistant treasurer, and payable to the order of Foster and: Thomson. On the 10th of May, 1S09, Dock-ray wrote to Foster and Thomson, enclosing-to them the two checks, and advising them that he would write to them the next day in full, and send to them certified copies of' the proceedings had on the dissolution of the-attachment. That letter and the two checks, were received by Foster and Thomson on the 19th of May, 1809, and on that day the-amount of the larger check of the two was paid to Foster and Thomson by the assistant treasurer. The amount of the smaller check was paid to them a few days afterwards. After the larger cheek had been paid, Foster and Thomson received from Dockray a letter dated May 11th, 1S09, advising them that he induced Mr. Bethel’s firm to consent to the motion for the dissolution of the attachment, by himself agreeing to enter a general appearance for Laird, and stating his reasons for so doing, and sending to them a certified copy of the proceedings.

The funds so in the hands of Foster and Thomson are the funds which have been attached in this suit as the funds of the respondent Laird. It is not shown that Prioleau, or his agents, ever informed the prize court in Florida, that, prior to the seizure of the Wren, Laird had parted with all his interest in the vessel, or had sold and conveyed her to Prioleau, or that Prio-leau had any interest in her at the time of her seizure, or claimed any interest in her proceeds which that court was restoring; or that any such information was given by Prioleau, or his agents, to Mr. Ward, or to the libellants, prior to the receipt of the fund by Foster and Thomson.

It is now set up by Foster and Thomson, that, in all their transactions respecting this matter, from the commencement of their connection with it, they were acting on behalf of Prioleau, and not of Laird; that they so acted in procuring a reversal by the supreme court of the decree condemning the vessel, and in obtaining the money from the prize court; and that they knew throughout of Mr. Prioleau’s having been, for many years, a member of the firm of Frazer, Tren-holm & Co. The inadmissible and incompetent testimony referred to by the supreme court, in its decision, was a part of the depositions in preparatorio, of persons on board of the vessel, and was presented as tending to show ownership of the vessel in Frazer, Trenholm & Co., on behalf of, and as agents of, the Confederate States. It consisted, partly, of the statement of one witness, that he believed that Frazer, Tren-holm & Co. were the owners of the vessel at the time she was seized, that he had heard Helms, at Havana (the same person who is spoken of by the supreme court, in its decision, as the agent, of “the enemy,” at Havana), speak of Frazer, Trenholm & Co. as the owners of the vessel, that he believed the real and true property of the vessel to be in Frazer, Trenholm & Co., and that he had heard Helms say that he was the agent of Frazer, Trenholm & Co., for the Wi en, and other steamers, at Havana; and of the statement of another witness, that he believed the vessel was the property of the Confederate States, and that he so believed, from what he had heard her former master say, with whom he had sailed in her.

As evidence, in the present case, of the fact that Prioleau and not Laird, at all times at and after the seizure of the vessel, owned her, and that Foster and Thomson are at liberty to maintain that they hold for Prio-leau, and not for Laird, the moneys which they received from the prize court in Florida, there is produced to the court the original of an instrument signed by the respondent Laird, as “John Laird, Jr.,” and dated January 3d, 1865, whereby he, described therein as “John Laird, the younger, of Birkenhead, in the county of Chester, shipbuilder,” in consideration of £15,450, paid to him “by Charles Kuhn Prioleau. of Liverpool, in the county of Lancaster, merchant,” transfers “sixty-four sixty-fourth shares” in the Wren to Prioleau. and covenants that she is free from incumbrances. This bill of sale was registered in the customhouse at Liverpool, Hay 1st, 1805.

On the part of Prioleau, acting through Foster and Thomson, it is contended, that, under this process of garnishment, the libel-lants have no greater rights against Foster and Thomson than Laird himself would have against-them, as respects the funds in their hands; that, if Laird could not recover the funds from them, or from Prioleau. such funds cannot be held under the attachment in this case against Laird; that, inasmuch as Laird sold the vessel to Prioleau, Laird could not recover these funds from Foster and Thomson, or from Prioleau: that the question is merely one as to who, in fact, j owns the funds; that the proceedings in the prize suit do not estop Prioleau from showing, in this suit, that he really owns the funds, and owned the vessel when she was seized; that the libellants have no more right to insist on such estoppel, than Laird would have, if he were seeking to recover these funds from Prioleau; and that neither the original decree of the prize court, nor the decree of the supreme court, was a decree that Laird owned the Wren when she was seized, or that Prioleau did not then own her.

It clearly appears, by the language of the decree of condemnation made by the prize court, that it condemned the Wren, as lawful prize of war, on the ground that she was, at the time of her capture, the property of enemies of the United States. The claim, put in on behalf of Laird, had averred that Laird, “a lawful British subject, residing in England, is the true and bona fide owner of said steamer, and that no other person is the owner thereof.” The decree necessarily negatived this averment of the claim, and, in declaring that the vessel was “the property of enemies of the United States,” declared +hat she was not the property of Laird. On the appeal, the supreme court, as appears from its decision, not only decided that there was no legal proof that the vessel was owned by the Confederate States, or their agents, but also decided that there was strong evidence that the title to her was in Laird, who is called by the court “the claimant,” and that he owned her. From the whole case, it is manifest, that the supreme court, on the appeal taken on behalf of Laird, in order to find that the vessel was not enemy property, was obliged to find, and did find, that the vessel was the property of Laird, the claimant of her. The decree of the supreme court reversed the decree of the district court, that is, declared, in reversal of the latter decree, that the vessel was, at the time of her capture, not the property of enemies of the United States, and remanded the case, with directions to restore the vessel to the claimant. The claimant was Laird, who claimed as owner; and Prioleau, through Foster and Thomson, as is shown, in fact procured the prize court to make a decree that the $31.441 02 be paid to “John Laird, claimant,” that is, to John Laird by virtue of his claim filed in the prize court, which was a claim to the vessel as her “true and bona fide owner;” and such a decree was made.

In the prize suit, if Prioleau had, in fact, an interest in the vessel, he could have interposed a claim, and put himself in a position, on the record, to contest the prosecution in the prize court, and to be a direct party to an appeal. If, in fact, he became the owner of the vessel ten days after her registry, so that he owned her substantially during the whole of her career, he was, most clearly, a party to.the suit in rem against her, and Laird was no party. Notice of the suit, by attachment and publication, if notice to the owner, was notice to Prioleau. Notice to Stiles, the master, was notice to Prioleau, the real owner. In this view, Prioleau is bound by the record of the proceedings in the prize court. -Croudson v. Leonard, 4 Crunch [8 U. S.] 434, 437. The attachment of the vessel in- the prize suit, was notice to her owner, and, therefore, notice to Prio-leau as such owner, and he was a party to that suit, and the decision in the suit binds him, and is conclusive as against him, and cannot be re-examined in this suit. The Mary, 9 Cranch [13 U. S.] 120, 144; Bradstreet v. Neptune Ins. Co. [Case No. 1,793].

But, beyond this principle, it clearly appearing that Prioleau, through Foster and Thomson, actually prosecuted the appeal in the supreme court, and procured that court and the prize court to declare that the averment of ownership in Laird, made in the claim and answer in the prize suit, was true, and, consequently, that his, Prioleau’s, present claim of ownership had no foundation, and that he also procured the prize court to restore the money, the proceeds of the sale of the vessel, to Laird, as owner, Prioleau is estopped from denying, in this suit, that Laird was such owner. Prioleau did not disclose his ownership to the supreme court or to the prize court. His assertion now is that he owned the vessel when she was seized. If his claim now were that his interest in her accrued after her seizure, there might, perhaps, be some reason for entertaining a more favorable view of his position. But he permitted Stiles to conceal the trae ownership of the vessel, and to assert a falsehood to the prize court That falsehood was asserted nearly six months after the transfer to Prioleau, and nearly two months after the entry of the transfer at the customhouse in Liverpool. Prioleau also permitted the vessel to be sailing with a certificate of registry showing that Laird was her owner, at a time when Prioleau was her owner by bill of sale from Laird, and when such bill of sale had been entered in the customhouse where the original registry, in the name of Laird, as owner, was made. In a case of libel as prize of war, the burden of proving the neutral ownership of the vessel being upon the claimant, the papers of the vessel are allowed to be evidence on the question of such ownership, and the claimant, being thus permitted to resort to them, is bound to see that they are true papers. The British merchant shipping act of 1854 (17 & 18 Yict. c. 104) provides (section 57) that every bill of sale for the transfer of any registered ship, when duly executed, shall be produced to the registrar of the port at which the ship is registered, with a declaration made by the transferee, under section 56, and that the registrar shall thereupon enter in the register book the name of the transferee as owner of the ship comprised in the bill of sale, and shall endorse on the bill of sale the fact of such entry having been made, with the date and hour thereof. In the present case, this was done, and the name of Prioleau was entered in the register book, in the office of the registrar, in the customhouse at Liverpool, as the owner of the Wren, on the 1st of May, 1865. The act also provides (section 88) that, if, on any change of ownership in the vessel, the owner desires to have the vessel registered anew, It shall be lawful for the registrar of the port at which the ship is already registered, on the delivery up to him of the existing certificate of registry, and on compliance with such of the other requisites to registry as the registrar thinks material, to make such registry anew, and grant a certificate thereof. Prioleau, therefore, might easily, within the five months and a half which elapsed between the date of the bill of sale and the seizure of the Wren, have procured for that vessel a certificate of registry showing the ownership of her by Prioleau, and which, if on board of her at her seizure, as it ought to have been, would have made it impossible for the supreme court to decide that Laird was her owner, based, as that decision was, solely upon the certificate of registry found on board. Is it possible that a court of the United States can be seriously invoked to sustain Prioleau in committing a fraud of this character on another court of the United States, and to aid him in securing the fruits of the fraud? If Prio-leau had disclosed to the supreme court, or to the prize court, the fact that the certificate of registry found on board the Wren did not state her true ownership at the time of her seizure is it .not entirely dear that the decree of condemnation would not have been reversed? Prioleau must be held to be barred from the privilege of now denying what he asserted in those courts, and of now asserting what he denied in those courts. As between him and the courts of the United States and these libellants, the vessel and her proceeds belonged to Laird, whatever might be adjudged in regard to such proceeds, if either Laird or Prioleau were seeking to recover such proceeds from the possession of the other.

There is another view of this case. The agents of Prioleau did not disclose to Mr. Ward that the funds belonged to Prioleau, and did not belong to Laird. If they had disclosed to him their intention, when the funds should be released from the attachment in the Florida court, and be transferred from the custody of that court, in prize, and should reach their hands, to set up that the funds did not belong to Laird, but belonged to Prioleau, is it, on the state of proofs now disclosed, to be imagined that Mr. Ward would have consented to release the attachment? The libellants, represented by Mr. Ward, are entitled to have this court act upon the matter as the court in Florida would have acted upon it, if it had been made known to that court, before the delivery of the funds to Foster and Thomson, and before the release of the attachment, that Prio-leau was the owner of the vessel when she was seized. Is it to be imagined that that court would have delivered the funds to Prioleau, or would have discharged the attachment, as one which, while issued against funds belonging to Laird, had been levied on funds belonging to Prioleau? And yet this court is asked to deliver the funds to Prio-leau, and to hold them not to have been properly levied on as the funds of Laird. This case falls directly within the principle which holds a party concluded by his acts and admissions, on the faith of which a court of justice has been led to adopt a particular cause of proceeding. 1 Greenl. Ev. § 204.

In the foregoing views, I have proceeded on the ground that, in fact, Foster and Thomson have regarded themselves as acting throughout for Prioleau, and not for Laird, and have acted throughout for Prio-leau as against Laird. But it is such very action which estops them and Prioleau from now saying that the money is not Laird’s money. As between them and the court in Florida, and the supreme court, and these libellants, Foster and Thomson received the money as Laird’s money,- and not as Prio-leau’s money. And, if they were to claim to hold it for Laird, as against-Prioleau, it would seem, on the authority of the case of De Metton v. De Mello, 12 East, 234, that Prioleau could not recover it from them, he having colluded with Laird and Stiles to mate the vessel appear to be the property of Laird, and not the property of Prioleau, a member of the firm of Frazer, Trenholm & Co., and to set up a false' defence in the courts of the United States, and to deceive and impose upon such courts. I must, therefore, hold, that, for the purposes of the attachments levied in this suit, the moneys levied on thereunder in the hands of Foster and Thomson, were the moneys of the respondent.

[NOTE- Pursuant to this opinion, a decree was made requiring the garnishees to pay the money into court; and subsequently the court entered a final decree in favor of libellants, and against Laird, for a sum of money, and subjecting the fund to the payment thereof. Appeals were taken from both these decrees, and the circuit court (Waite, Circuit Justice) dismissed the first appeal, and after a hearing on the second appeal, only, held that the fund did not belong to Laird, and reversed the decree accordingly. Case No. 3,510.]

3 [See Case No. 16,768.]