Page:United States Reports, Volume 2.djvu/43

Rh



The first objection is, that a libel does not lie by the crew of a privateer, for their respective proportions of a prize.

The second objection is, that the libellants, in this case, are not part of the privateer’s crew, nor captors, entitled to a proportion of the prize stated in their libel.

With regard to the first objection, we are of opinion, that a libel does lie, and that it is the proper and regular mode of redress: For, the commission of a privateer, according to the form established by Congress, extends not only to the captain, but also to the ship and crew; they are captors, as well as the captain, and their rights to the thing captured, is equally founded on the commission. The Ship is figuratively considered as an agent, and represents the owners. Articles of agreement generally direct the distribution; but if no articles are executed, the Admiralty Courts will make distribution, in proportion to the number, interest and merits of the captors.

But, it is said, “the Admiralty Court, in this case had exercised all its jurisdiction and power; that a libel was filed by the captain, and a decree passed for condemnation; that the prize has been sold, and the money lodged in the hands of the Marshal; that the Marshal must make distribution according to the list of the crew, which the captain shall deliver; and if the captain makes a false list, the party injured has no other remedy than by an action at law.”

The original libel, we find, was filed by the captain, in behalf of himself and crew, and the decree adjudges the prize to the captors. The Marshal has sold the prize, and the money lies in his hands; on application, he refuses to pay the libellants; and the question is, what is the mode of redress?

We are of opinion that the libellants had a double remedy: They had an action at law, for money had and received to their use; and they were entitled to a supplemental libel, upon which a decree and order might have been obtained, to compel the Marshal to pay the money. Such a libel is nothing more than a form of proceeding, to carry into execution the original decree; and if the Admiralty Courts are competent to give judgment, they must be competent to carry it into execution.

We are also of opinion, that if a Marshal makes distribution, without the orders of the Admiralty Court, he does it at his peril. The list or return of the crew by the captain, is no justification for his payments. He is the officer to carry the decree of the Court into execution, and he must take care that his payments are made according to such decrees; for, on misapplication of the payment, a libel will lie to make him responsible. If he would therefore act safely, he ought, before he makes his