
    Douglass v. Roan.
    [June, 1790.]
    Forfeiture of Vessel-Revenue Laws — Entry of Cargo-Omissions. — Ship’s stores and seamen’s stock, are not subject to entry at the custom house; and the omission to enter them will not render the vessel liable to forfeiture, although that and other circumstances created probable cause of seizure.
    Seamen — Wages of — Proceeds of Sale of Ship. — The proceeds of the sales of a ship condemned as forfeited, by the court of admiralty, are liable to the seamen’s wages, in lieu of the ship.
    
      Christopher Roan, as well on behalf of himself as of the commonwealth, filed, in May 1786, a libel, in the court of admiralty, against the brigantine Tortola, a British vessel, Hugh Douglass, master, for a breach of the then revenue laws of the state, charging that the ship and cargo, belonging to a foreigner, arrived at Hampton, about the 17th of April, 1786; and that the master made a false entry of part of the cargo, by concealing three hogsheads of porter, two boxes and one cask of shoes, one box of merchandize, and forty-two barrels of herrings and barley: whereby the vessel and that part of the cargo which was not entered, became liable to forfeiture.
    *The answer of Douglass, the master, states, that the vessel arrived from Glasgow, Great Britain, at the port of Hampton, on the 17th of April, 1786; and, upon that day, he made a true entry of the vessel and cargo with the naval officer; to whom he delivered the cocketts and victualling bill, and obtained a permit. That the cask of shoes was duly entered, and that there were no boxes of that article. That the porter was part of the stores of the vessel, and included in the victualling bill. That the herrings and barley were the private sea stock of the mariners; and that there were no goods, wares or merchandize liable to the payment of duties, on board the said vessel, which were not duly entered.
    There was a general replication to the answer; and as there could be no jury, the respondent being a foreigner, the court proceeded to examine the witnesses and record the testimony. .
    The naval officer states, that, by the cocketts, there were two casks of shoes on board; and no more. That there was one hogshead of sugar, which, through the mistake of the clerk, was not properly entered in the permit. That the victualling bill contained four groce of beer and porter; and he thinks the quantity of stores, therein expressed, moderate for a-ship of that bur-then ; and as such was allowed at the office. That it is not usual to demand duties on seamen’s stores, unless intended for sale. That barlejr and herrings are commonly brought in as sea stores, but he should have insisted on an entry of them, if he had known there were forty-two kegs.
    Another witness states, that he saw two boxes, which he was told contained shoes, sent, from the vessel at Citvr Point, on Friday, to Norfolk or Portsmouth, in a small sloop commanded by one Allen; and, on Monday morning, the searchers found another hogshead, which was not in the permit. That he saw the three hogsheads of porter; the herrings and barley; and a small box, 16 or 18 inches square, which the captain told him contained lace; and that the *naval officer had omitted to enter it. That the captain took no receipt for the boxes of shoes sent, by Allen, to Norfolk; and that he heard him acknowledge they were not.entered. That he heard the master offer to sell herrings to Mr. Eppes. The latter gentleman was afterwards examined, but merely spoke of having seen a hogshead of shoes and some coal on board, saying nothing of the herrings, nor was he asked any question concerning them.
    The mate of the vessel says, there were but two casks of shoes; one of which was sent to the consignee in Petersburg, and the other being consigned to the master, was still on board. That there was one hogshead of sugar only, which was also sent to the consignee at Petersburg. That there were only four groce of porter and-beer; which were put on board as part of the captain’s sea stock: two of which were started into the lockers to be used in the cabin, and the other two were in the three hogsheads now on board. That those four groce were all the beer and porter that was shipped. That the mariners were nine in number; and had, among them, forty-two small casks of herrings, oatmeal, and barley, brought-on board, as common sea stock, for their own use, and not as part of the cargo agreeable to the constant usage at Glasgow: that the herrings cost about four shillings sterling, and the barley and oatmeal, eighteen pence sterling per cask. That he saw the two boxes delivered to Allen, but does not know their contents, and thinks they were directed to one Boyd. That there was one box on board.
    The cocketts, victualling bill, and permit are filed; but do not materially varjr the case, except that a box is mentioned in one of the cocketts and permit, as well as some haberdashery and women’s calimanco shoes. Neither Allen, nor Boyd wa's examined; and the sales by the marshal make no mention of the supposed box of lace, nor of the two boxes delivered to Allen for Boyd.
    The court condemned the vessel, the kegs of herrings and barley, and the supposed box of lace; and ordered them to be sold: which being done, and the proceeds of *sale distributed, the respondent appealed to the court of appeals.
    Baker, for the appellant,
    contended that there was no false entry, as all the cargo was reported, except the supposed box of lace, which existed only in the imagination of the witness; for one box was actually entered in the cocketts and permit; and no other was never seen or heard of, except by him. That the herrings and barley were not part of the cargo, but stores merely for the use of the crew.
    To which it was answered, by the attorney general, That the witness stated, that the master said the box of lace was not entered; and the naval officer, that he would have insisted on the entry of the herrings and barley, if he had known they amounted to forty-two kegs.
    
      
      Forfeiture of Vessel — Revenue Laws — Entry of Cargo — Omissions.—See, upon this subject, Bentley v. Roan, 4 Call 153; Fairclough v. Gatewood, 4 Call 158; Stratton v. Hague, 4 Call 564.
    
    
      
      Mariner — Quitting Ship without Consent — Wages.— See Cavan v. Martin, 3 Call 228.
    
   But the court thought there was no evidence of fraud, or improper omissions of making the entry. That the barley and herrings were not more than a seaman’s common stores, which are never entered; and that the supposed box of lace was probably that mentioned in the permit. That the proceeds of the sale ought therefore to be restored to the owners; but at the costs of the respondent, as there was probable cause of seizure; and the following judgment was entered on the order book: ‘ ‘This day came the parties by their counsel, and the court having maturely considered, the transcript of the record, and the arguments of the counsel, are of opiniofi that the said sentence is erroneous: Therefore it is decreed and ordered, that the same be reversed and annulled, and that the appellee pay to the appellant his costs, by him, expended in the prosecution of his appeal aforesaid here: And the court proceeding to give such sentence as the said court of admiralty ought to have given, do decree and order that the libel be dismissed; that the sum of two hundred and thirty pounds three shillings and three pence, the amount of the sales of the vessel and *cargo, be restored to the respective owners, retaining thereout seventy-two pounds seven shillings and eight pence half penny, the costs in the court of admiralty, the court being of opinion that there was probable cause of seizure: and the money raised by the sale of the brigantine, being subject to the seamen’s wages, if any be due, in lieu of the ship, that such wages be secured previous to the payment of that money, as the district court, directed, by law, to be holden at Williamsburg, shall direct. All which is ordered to be certified to the said district court.”  