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This testimony strikingly confirms Cap-mitted "that south 69 is the proper course tain Folger's candid expression of opinion beforehand for the Culebra Passage" (the that though the master of the Olinde Rod- passage through which to reach St. Thomrigues may have been going in and out of as), but contested that the French vessel that port for years, he did not measure the was making that course. distances, but "would run so far down the coast and order them to steer to a certain point to head in.”

The commander of the New Orleans ad

Lieutenant Rooney, the navigator of the New Orleans, laid down the positions upon a chart as follows:

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[533] *The point C. is seven and two-thirds miles | one of them would be to pass about twelve from Morro, bearing S. W., and five miles miles north of the harbor of San Juan, and from point D., the intersection of a line that there was nothing impracticable in a drawn west with north and south ne vessel reaching Culebra Point, with a view through Morro. D. is five and two-thirds of going to St. Thomas, on a course of S. 69 miles from Morro. The range of Morro guns E. from midnight to 5 o'clock, and a change was six and one-half miles, and the range of at 5 o'clock to S. 73 E. He also testified the shore batteries, three miles east of Morro, that a vessel bound for San Juan on an ordialso six and one-half miles. According to nary commercial voyage would have been this plat, the Olinde Rodrigues was slightly nearer the shore than where the Olinde Rodwithin the range of the Morro guns, but not rigues was when she was captured, and that within the range of the shore batteries. The it was probable that if she intended to go New Orleans when she fired was close to the to San Juan and avoid the New Orleans she range of the shore batteries and something would have hugged the shore and not been over a mile outside of the extreme range of out at sea. the Morro guns.

when sailing on a proper course for St. Thomas, would be drawing to the south, and that the New Orleans was to the north of her, in which case, obviously, the nearer the vessels approached the more open would the masts of the Olinde Rodrigues appear. But the clear preponderance was that the captured ship was to the west of a north and south line drawn through Morro, and running nearly south just before or when the New Orleans fired.

Some of the evidence, in short, had a tenAnd it is urged that the conclusion is in-dency to show that the Olinde Rodrigues, evitable that the French ship intended to run into the port and to draw the pursuing cruiser within the range of the Spanish guns. If her being in the neighborhood were not satisfactorily explained; if she persistently ignored the signal of the cruiser; and if her course was a course into the port of San Juan and not a proper course to reach St. Thomas, then the conclusion may be admitted; but it is not denied that she was in the neighborhood in the discharge of her duty, and we have already seen that she may be consistently regarded as not having defied the signal.

On the part of the captors, the witnesses concurred that the Olinde Rodrigues's course was laid for the port of San Juan, while on her behalf this was denied, except so far as her course for St. Thomas took her near the blockaded port. In addition to the witnesses from the New Orleans the telegraph operator on the Morro testified that the Olinde Rodrigues was coming directly toward the Morro, but changed her course when the shot was fired.

It is impossible to deny that the testimony of Captain Folger, the commander of the New Orleans, and of his officers, was extremely strong and persuasive to establish that the Olinde Rodrigues, when brought to, was in-[535] tentionally heading for San Juan, and pursuing her course in such a manner as to draw the blockading cruiser in range of the enemies' batteries, and yet we must consider it in view of the evidence on behalf of the captured ship, and of the undisputed facts tending to render it improbable that any design of attempting to violate the blockade was entertained. The Olinde Rodrigues had neither passengers nor cargo for San Juan; in committing the offense, she would take the risk of capture or of being shut up in that port; she was a merchantman engaged in her regular business and carrying the mails; she was owned by a widely known and reputable company; her regular course, though interrupted by the blockade of that port, led directly by it, and not far from it; and the testimony of her captain and officers denied any intention to commit a breach.

The evidence of evil intent must be clear and convincing before a merchant ship belonging to citizens of a friendly nation will be condemned. And on a careful review of the entire evidence, we think we are not compelled to proceed to that extremity.

A principal reason given by the witnesses for concluding that the Olinde Rodrigues was making for San Juan was that her masts, as seen from the deck of the New Orleans, were open, thus indicating that she was sailing south or toward the port of San Juan. It was admitted that this would not necessarily be so unless the New Orleans was on the same line east and west with the other vessel, or, [534]in other words, if the *New Orleans were to the north of the Olinde Rodrigues, the latter's masts might appear open without necessarily indicating that she was sailing south, or towards the land. Lieutenant Rooney did not see her until after she was captured. He is positive as to the approximate position of the New Orleans early in the morning before the Olinde Rodrigues was But, on the other hand, we are bound to sighted, which had not occurred when he say that, taking all the circumstances towent below at 7.30, and he is positive as together and giving due weight to the evidence the position of the New Orleans after the capture. He places the position of the New Orleans at 6.50, when the last bearing observation was taken, at fifteen miles north of the coast and of the Morro. At nine o'clock bearings were again taken, and she was about seven and two-thirds miles from the Morro. Lieutenant Rooney explained in his testimony the proper courses for a vessel sailing to St. Thomas, and stated that several courses might be properly steered, that

on behalf of the captors, probable cause for
making the capture undoubtedly existed;
and the case disclosed does not commend this
vessel to the favorable consideration of the

Probable cause exists where there are cir-
cumstances sufficient to warrant suspicion
though it may turn out that the facts are
not sufficient to warrant condemnation.
And whether they are or not cannot be de-
termined unless the customary proceedings

of prize are instituted and enforced. The Adeline, 9 Cranch, 244, 285 [3: 719, 733]; The Thompson, 3 Wall. 155 [18: 55]. Even if not found sufficient to condemn, restitution will not necessarily be made absolutely, but may be decreed conditionally as each case requires, and an order of restitution does not prove lack of probable cause. The Adelinc, supra; Jennings v. Carson, 4 Cranch, 2, 28, 29 [2:531,539].

In the statement of Sir William Scott and [536]Sir John Nicholl, transmitted to Chief Justice Jay, then Minister to England, by Sir William Scott, September 10, 1794, "the general principles of proceeding in prize causes, in British courts of admiralty, and of the measures proper to be taken when a ship and cargo are brought in as prize within their jurisdictions," are set forth as laid down in an extract from a report made to the King in 1753 "by Sir George Lee, then judge of the prerogative court, Dr. Paul, His Majesty's Advocate General, Sir Dudley Rider, His Majesty's Attorney General, and Mr. Murray (afterwards Lord Mansfield), His Majesty's Solicitor General", and many instances are given where in the enforcement of the rules "the law of nations allows, according to the different degrees of misbehavior, or suspicion, arising from the fault of the ship taken, and other circumstances of the case, costs to be paid, or not to be received, by the claimant, in case of acquittal and restitution." Wheaton, Captures, Appendix, 309, 311, 312; Pratt's Story's Notes, P. 35.

In The Apollon, 9 Wheat. 362, 372 [6: 111, 113], Mr. Justice Story said: "No principle is better settled in the law of prize than the rule that probable cause will not merely excuse, but even, in some cases, justify a capture. If there be probable cause, the captors are entitled, as of right, to an exemption from damages; and if the case be of strong and vehement suspicion, or requires further proof to entitle the claimant to restitution, the law of prize proceeds yet farther, and gives the captor their costs and expenses in proceeding to adjudication."

Section 4639 of the Revised Statutes contemplates that, under circumstances, all cost's and expenses shall remain charged on the captured vessel though she be restored, and this court has repeatedly held that damages and costs will be denied where there was probable cause for seizure, and that sometimes costs will be awarded to the captors. The Venus, 5 Wheat. 127 [5: 50]; The Thompson. 3 Wall. 155 [18: 55]; The Springbok, 5 Wall. 1 [18: 480]; The Dashing Wave, 5 Wall. 170 [18: 622]; The Sir William Peel, Wall. 517 [18: 696]; The Peterhoff, 5 Wall. 28, 61, 62 [18: 564, 572].

In The Dashing Wave, Chief Justice Chase said: "We think it was the plain duty of a neutral claiming to be engaged in trade with [587]Matamoras, under circumstances which war ranted close observation by the blockading squadron, to keep his vessel, while discharging or receiving cargo, so clearly on the neutral side of the boundary line as to repel, so far as position could repel, all imputation

of intent to break the blockade. He had no right to take, voluntarily, a position in the immediate presence of the blockading fleet, from which merchandise might be so easily introduced into the blockaded region. We do not say that neglect of duty, in this respect, on the part of the brig, especially in the absence of positive evidence that the neglect was wilful, calls for condemnation; but we cannot doubt that under the circumstances described, capturing and sending in for adjudication was fully warranted."

In The Springbok, the ship was restored but costs and damages were not allowed because of the misconduct of the master.

In The Peterhoff, payment of costs and expenses by the ship was decreed as a condition of restitution. The Peterhoff was captured by the United States vessel of war Vanderbilt on suspicion of intent to run the blockade and of having contraband on board. Her captain refused to take his papers to the Vanderbilt, and, in addition, papers were destroyed and a package was thrown overboard. The Peterhoff was searched, and it is stated in the opinion: "The search led to the belief on the part of the officers of the Vanderbilt that there was contraband on board, destined to the enemy. This belief, it is now apparant, was warranted. It was therefore the duty of the captors to bring the Peterhoff in for adjudication, and clearly they are not liable for the costs and expenses of doing so." The court then commented on the destruction of papers, and the throwing overboard of the package, in regard to which it was unable to credit the representations of the captain, but, in view of the other facts in the case, did not extend the effect of the captain's conduct and the incriminating circumstances to condemnation.

The case before us falls plainly within these rulings. This vessel had gone into San Juan on July 4, although the captain had heard of the blockade at St. Thomas, but he says he had not been officially notified of it:[538] he telegraphed to the consul at San Juan to know, and was answered that they had received no official notice from Washington that the port was blockaded; he also heard while in San Juan that "it would be blockaded some future time, but that was not officially." The vessel was boarded and warned by the Yosemite on July 5, and the warning entered on her log. This imposed upon her the duty to avoid approaching San Juan, on her return, so nearly as to give just cause of suspicion, yet she so shaped her course as inevitably to invite it.

When the New Orleans succeeded the Yosemite her commander was informed of the facts by his predecessor, and knew that whatever the right of the Olinde Rodrigues to be in those waters, she could not lawfully place herself so near the interdicted port as to be able to break the blockade with impunity. But when he sighted her the ship was on a course to all appearance directly into that port and steadily pursuing it. And when he signaled, the Olinde Rodrigues apparently did not obey, but seemingly persisted on her course, and that course would in a few moments have placed her within the range

The facts are stated in the opinion.
Messrs. Marcus A. Smith and Barnes
& Martin for appellant.

of the guns of Morro and of the shore bat- | said territory in and for the county of Co-
teries. In fact, when the shot was fired she chise to quiet title to certain mining claims
was within the range of the Morro's guns. in an action by Adolph Cohn against
The evidence is overwhelming that she did Angelina Daley et al. The other defendants
not change her course until after the shot having made default, judgment was rendered
was fired, even though she may have stopped on the trial for the defendant Daley. Af
as soon as she saw the signal. The turning firmed.
point into the Culebra or Virgin Passage
was perhaps forty miles to the eastward, and
while she could have passed the port of San
Juan on the course she was on, it would have
been within a very short distance. The dis-
regard of her duty to shun the port and not
approach it was so flagrant that the inten-
tion to break the blockade was to be presumed
though we do not hold that that was a pre-
sumption de jure.

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The ship's log was not produced until three hours after she was boarded, and it now appears that the papers furnished the boarding officer, "said to be all the ship's papers,' did not include two Spanish bills of health in which San Juan was entered as the vessel's destination. These were destroyed after the ship reached Charleston, and were, therefore, 19]in the ship's possession when the other papers were delivered. Had they been shown, as they should have been, can it be denied that they would have furnished strong corroboration of criminal intent? Or that their destruction tended to make a case of "strong and vehement suspicion?"

The entire record considered, we are of opinion that restitution of the Olinde Rodrigues should be awarded without damages, and that payment of the costs and expenses incident to her custody and preservation, and of all costs in the cause except the fees of counsel, should be imposed upon the ship. The decree of the District Court will be so modified, and as modified affirmed.

Mr. Justice McKenna dissented on the ground that the evidence justified condemnation.




(See S. C. Reporter's ed. 539-545.)

Appeal from territorial judgment—when it will be assumed that the evidence supports the judgment.

1. It must be assumed that the evidence supports the judgment, on appeal from a territorial court, in which there is no statement of


facts in the nature of a special verdict, under
the act of Congress of April 7, 1874.

A statement of facts not filed within the
time required by Ariz. Rev. Stat. §§ 843-845,
cannot be considered as part of the record on
appeal from the supreme court of that terri-
[No. 136.]

Argued and Submitted April 4, 5, 1899.

cided May 15, 1899.

Messrs. James K. Redington and James
Reilly for appellee.

*Mr. Justice McKenna delivered the[539] opinion of the court:

This is an action to quiet title to certain mining claims in the territory of Arizona. *The appellant was plaintiff in the court[540] Lelow, and the appellee was one of the defendants impleaded with A. J. Mehan, Dewitt C. Turner, and Bell H. Chandler.

Appellant claims to derive title from one A. J. Mehan under an execution sale upon a judgment obtained by him against Mehan in one of the justices' courts of Cochise county, in said territory, and a deed executed in pursuance of such proceedings and purchase.

The appellee denied the ownership of appellant, and asserted a superior right upon the following allegations: That on the 11th of April, 1890, and for more than five years before, she and one James Daley were husband and wife, and lived together as such. At the time of the marriage he owned no money nor property of any kind, but that she had three thousand dollars "in United States coin and currency"; and prior to the 11th of April, 1890, she and Daley used all of said money "in prospecting for, locating, and procuring, preserving, and maintaining titles to mines and mining claims," and owned the claims in controversy on the said 11th of April. During the coverture she was uneducated and utterly ignorant of the language, laws, and customs of the United States and the territory, and Daley was fairly well versed therein; and, confiding and relying on "the advice of her said husband," advanced him her money "to procure, preserve, and maintain the title" to the mining claims, and he took advantage of her ignorance and the confidence reposed in him, "and took and kept the title to all of said mining claims, name," without her knowledge or consent, and interests in mining claims in his owr and on the 11th of April, 1890, he abandoned her, and has not since returned to or communicated with her.

On the 2d of September, 1890, Daley conveyed the claims by deed duly acknowledged and recorded in the recorder's office of Cochise county, of said territory, to A. J. Mehan, who gave no value therefor, and who had full notice and knowledge of all her equities.

The appellant claims to own the claims by virtue of an attachment, judgment, execution De- sale thereunder, and a constable's *deed in the[541] case of Adolph Cohn v. A. J. Mehan. Cohn was plaintiff in the action and the purchaser

APPEAL from a judgment of the Supreme

Court of the Territory of Arizona affirming the judgment of the District Court of

at the sale, and at that time and long prior

thereto had full notice and knowledge of her equities, and notice and knowledge that Me

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