
    No. 13309.
    No. 13416.
    No. 13083.
    No. 13211.
    No. 13212.
    No. 13212.
    No. 13221.
    No. 13221.
    No. 13221.
    No. 13390.
    No. 13390.
    No. 13390.
    FRANCIS H. SWAN v. THE UNITED STATES. CHARLES STOTESBURY, ADM'R, v. THE SAME. CHARLES L. STEEVER v. THE SAME. JOHN A. HAWES, ADM'R, v. THE SAME. JOHN MULDOON, ADM'R, v. THE SAME. MARY J. HAMILTON, ADM'X, v. THE SAME. WILLIAM C. WILLIAMSON, ADM'R, v. THE SAME. BERNARD HARLEY v. THE SAME. DANIEL C. GEORGE v. THE SAME. HENRIETTA A. BUCKBEE, ADM'X, v. THE SAME. HENRY WILKES, ADM'R, v. THE SAME. JULIUS O. DEMING, ADM'R, v. THE SAME.
    [Decided January 7, 1884.]
    
      On the Facts.
    
    The captors of the Albemarle, including the commander of the vessel making the capture, are paid prize money in proportion to their respective rates of pay in the service. Before distribution three officers are promoted as of the day of the capture, and are paid according to this subsequently acquired rank. In 1882 Congress refer the claims of the captors to this court and direct that if any captor has not received “Ms full and just share of the prize money” the court shall render judgment for the deficit which should have been originally distributed to him.
    I. Under the Prize Act 1864 (13 Stat. L., p. 306, § 10, ch. 174) the commander of a single ship making a capture is entitled to one-tenth of the prize money, and cannot take like the others in proportion to his “rate of pay in the service,” even though his one-tenth be less than the shares of his subordinate officers.
    II. In the Prize Act 1864, wherever the term “ vessel” refers to a vessel belonging to the Navy, it must be construed to include, under § 32, “ all armed vessels ”; and the ‘term “ ship ” in § 10 is to be construed as synonymous with “vessel.”
    
    HI. An armed torpedo launch, attached to a squadron, without books, commanded by an officer assigned to that duty by the commander of the squadron, is a “ ship ” within the meaning of the Prize Act 1864 (§ 10), and her commander “ the commander of a single ship.”
    
    
      IV. The term “distribution” in the Prize Act 1864 (§4) refers to a division of prize money (1) among vessels, or between a capturing vessel and the government; (2) among the fleet officers and individual captors. The former- division must be decreed by the prize court; the latter by the Treasury and Navy Departments; and a prize court is without jurisdiction to make distribution among individual captors, except in the case of captures by privateers.
    V. The rights of individual captors become fixed at the moment of capture. Therefore the promotion of an officer between capture and distribution, though his commission take effectfrom the date oí capture, can neither increase his share of the prize money, nor diminish the share of others.
    VI. Where a statute provides that if “any of said captors has not received his full and just share of the prize money” the court shall render judgment in his favor, it is no defense that a captor acquiesced in an erroneous distribution which exhausted the fund.
    VII. Though a statute conferring jurisdiction of certain cases declares that they shall be subject to “all defenses thereto which are or may be open to the United, States, ” yet if Congress were advised by the reports of their committees that the claimants had received two payments of prize money when the act passed, such payments cannot be pleaded by way of estoppel.
    
      The Reporters’ statement of the case:
    The demands upon which these cases are founded were referred to this court by the Act 8th August, 1882 (22 St-at. L., p. 738, ch. 480). The following are the facts as found by the court:
    I. At the time of the capture of the rebel ram Albemarle, as hereinafter found, the North Atlantic Blockading Squadron was under the command of Rear-Admiral David D. Porter, whose fleet captain was Lieutenant-Commander K. Randolph Breese; and a division of said squadron, known as the Division of the Sounds, was commanded by Commander William H. Macomb.
    II. In October, 1864, Lieut. William B. Cushing, U. S. N., was, by order of the Secretary of the Navy, detached from the command of the United States ship Monticello, and directed to report to Rear-Admiral Porter for such duty as he might assign him in said squadron.
    III. Said Cushing was by Rear-Admiral Porter assigned to the command of “United States Picket Launch No. 1,” an armed torpedo launch, propelled by steam, and attached to said squadron, and a part of said Division of the Sounds.
    IV.The following are the names of the officers and crew on board said launch at the time of the capture hereinafter mentioned, the rank then held by each of them, and the rate of pay which each of them was then entitled to:
    
      
    
    The person named William Smith in this table was otherwise known as Daniel G. George.
    It does not appear that said Picket Launch No. 1 had any books.
    V. On the night of October 27,1864, the rebel iron-clad ram Albemarle was captured and sank by said Picket Launch No. 1, at Plymouth, on the Eoanoke Eiver, in the State of North Carolina.
    VI. Afterwards the said ram Albemarle was raised by the United States forces, and appropriated to the use of the United States. Before being so appropriated she was appraised by a duly appointed board of naval officers, at the value of $79,944, which amount was by the Secretary of the Navy deposited with the assistant treasurer of the United States at Washington.
    VII. Proceedings to condemn the said ram Albemarle as prize were instituted in the district court of the United States for the District of Columbia, by which court, on the 21st day of August, 1865, an order was made for the payment, out of said sum of $79,944, of costs to the amount of $2,645.30, and that the remainder, to wit, $77,298.70, should be paid to the credit of the Treasurer of the United States, to be distributed according to the terms of a decree of distribution passed in the case on the same day; which decree was in the terms following:
    “The United States 1
    
    “ v. ! No. 146. In prize. Decree
    “The Bebel Bam Albemable, ( of distribution.
    “HEB TACTILE, &C. j
    “A final decree of condemnation of the rebel ram Albe-marle having been duly rendered herein by the court, and it appearing by the papers filed in court, under the seal of the Navy Department, that the said rebel ram, having been taken and appropriated by the Government of the United States for the use of the United States, was appraised at the sum and value of ($79,944) seventy-nine thousand nine hundred and forty-four dollars; and it further appearing that the aggregate sum of the costs and disbursements herein, together with the allowance made to the counsel for captors, under a special stipulation filed with the papers in the case, and as by the adjustment of the same, pursuant to the provisions of the act of June 30,1864, on file in the office of the clerk, is two thousand six hundred and forty-five dollars and thirty cents ($2,645.30), and that the net amount for distribution on the basis of the said adjustment is therefore the sum of seventy-seven thousand two hundred and ninety-eight dollars and seventy cents ($77,298.70):
    “It is now ordered and decreed, on the motion of the district attorney, the counsel for the captors assenting to the same, that the aforesaid net amount be deposited in the Treasury of the United States, and be distributed according to law.
    And it further appearing that the papers filed in said cause, under the seal of the Navy Department, and the affidavit in behalf of the captors, show what public ship is entitled to share in the said prize, and whether the said prize was of superior, equal, or inferior force to the vessel making the capture, and there being no conflicting claim:
    “Now, therefore, it is adjudged and decreed that the prize was of superior force to the vessel making the capture, and that the whole of the residue of said valuation be paid to the captors, as follows: One-twentieth of said residue to the officers commanding the North Atlantic Blockading Squadron at the -time of said capture, one-hundredth part of the said residue to the fleet captain of said North Atlantic Blockading Squadron, and the remainder distributed to the other persons doing duty on board said torpedo launch in proportion to their respective rates of pay in the service.”
    VIII. Before any distribution was made of said sum of $77,298.70, three of the said officers of said Picket Launch No. 1 were promoted, as follows :
    
      Lieut. William B. Cushing was, in February, 1865, promoted to lieutenant-commander, to take rank from October 27, 1864.
    Acting Master’s Mate William L. Howarth was, on the 16th of March, 1865, promoted to acting ensign, to date from September 17, 1864; and on the 24th of March, 1865, he was promoted to the grade of acting master, to date from October 27, 1864.
    Acting Master’s Mate Thomas S. Gay was promoted to the grade of acting ensign March 11,1865, to date from October 27,1864.
    IX. In pursuance of the Act of April 1, 1872, “ relating to the capture of the Albemarle” (17 Stat. L., 649, ch. 76), the district court of the United States for the District of Columbia, on the 5th day of June, 1872, took up and re-examined the aforesaid prize case of said ram Albemarle; and thereupon ordered and decreed a re-appraisal of said ram by Post Captain Earl English, Commodore William E. Le Roy, and Commander Robert E. R. Lewis, all of the United States Navy, who, after having been duly sworn truly to value and appraise the said ram, did make report to said court, on the 26th of June, 1872, that they appraised the same at the sum of $282,856.90 at the date when she was captured, in hull, armor, engines, guns, stores, and equipments. Thereupon the said court ratified and confirmed said appraisal, and ordered that that sum, less $79,944 previously deposited with the assistant treasurer of the United States, as stated in finding YI, should be deposited with the said assistant treasurer, subject to the order of the court; and thereupon the Secretary of the Navy caused to be deposited with said assistant treasurer the sum of $202,912.90.
    X. In further pursuance of said act, the said district court, on the 11th day of February, 1873, made and entered the following decree of distribution:
    “The United States f
    
    
      uv. > No. 146. In prize.
    “The Rebel Ram Albemarle. )
    “This cause coming on to be heard and for final decree, the district attorney of the United States for the District of Columbia appeared for the United States, and the captors were represented by their proctors, whereupon the proceedings were read and considered; and it appearing to the court that on the first day of April, A. D. 1872, an act of Congress was approved by the President requiring this court to take up and re-examine this cause, that the captors might obtain an appraisal such as is required by the prize laws of Congress, and that on the third day of June, A. D. 1872, Commander William B. Cushing, of the U. S. Navy, who commanded the expedition on board the topedo launch which captured the said prize, filed in this court his petition, on behalf of himself and the other captors, praying the order of this court for such appraisement, whereupon a board of appraisers was appointed to make such appraisement, and notice was directed to be given and was given by public advertisement of these proceedings to all persons claiming to be interested therein, for the term of three weeks, and after the expiration thereof the said board returned their appraisement, valuing the said prize at the sum of two hundred and eighty-two thousand eight hundred and fifty-six dollars and ninety cents ($282,856.90), to which report no exceptions were filed either by the United States or the captors, and the same was, on the ninth day of July, A. D. 1872, ratified and confirmed; and that thereafter, on the eighth day of January, A. D. 1873, Congress made an appropriation, to enable the Secretary of the Navy to pay the captors of the said prize, of the sum of two hundred and two thousand nine hundred and twelve dollars and ninety cents, being the difference between the value of the said vessel, as appraised under the order of this court, and the amount heretofore deposited by the Secretary of the Navy with the assistant treasurer of the United States as part of the value of said prize, which sum of two hundred and two thousand nine hundred and twelve dollars and ninety cents ($202,912.90) has been deposited with the assistant treasurer of the United States at Washington, subject to the order of this court; and it being further seen that on the 12th day of July, A. D. 1872, Commander William H. Macomb, U. S. Navy, filed his petition in this cause claiming to share in the prize as commander of a division of the North Atlantic Blockading Squadron, and has offered evidence to prove his claim as commanding such division; and it being further seen that on the 5th day of August, 1872, William Peterkin, and on the 9th day of January, A. D. 1873, Wilson P. Burlingame, filed their petitions, by leave of the court, claiming a share in the prize, as having been part of the crew of a cutter which accompanied the torpedo launch on the expedition to capture the prize, but was ordered back before the attack was made, but neither of said petitioners having offered any evidence to support their claim, while, on the other hand, the persons doing duty on the torpedo launch have offered evidence to prove that the said cutter was not within signal distance of the torpedo launch at the time of capture, nor under circumstances nor in a condition to render any aid; and at this hearing no objection is made on the part of the said petitioners Burlingame and Peterkin : u Now, therefore, it is, this eleventh day of February, A. D. 1873, ordered, adjudged, and decreed that of the said amount of two hundred and two thousand nine hundred and twelve dollars and ninety cents ($202,912.90) there be paid into the hands of the marshal of the District of Columbia the sum of seven thousand and seventy-six dollars and fifty-one cents ($7,076-1-oJgj, to be by him paid according to the bill of costs taxed and allowed by this court; and that the residue of said sum so as aforesaid appropriated, to wit, the sum of one hundred and ninety-five thousand eight hundred and thirty-six dollars and thirty-nine cents ($195,836 -ffe) be deposited in the Treasury of the United States, to be distributed as follows, that is to say: One-twentieth part thereof to the officer commanding the North Atlantic Blockading Squadron; one-hundredth part thereof to the fleet captain of the said blockading squadron; one-fiftieth part thereof to the officer-commanding that division of the said squadron called the Division of the Sounds of North Carolina, together with the further sum of fifteen hundred and forty-five dollars and ninety cents ($1,545.90), being one-fiftieth part of the sum heretofore decreed by this court to be distributed; and that the remainder be distributed to the persons doing duty on the torpedo launch, in proportion to their respective rates of pay in the service.”
    XI. In all the proceedings in said United States district court hereinbefore set forth there was no appearance in said court by or on behalf of any of the captors of said ram Albe-marle except the said William B. Cushing. _
    XII. Of the total amount of the appraised value of said ram Albemarle which was ordered for distribution by the two decrees above set forth, there remained for distribution among the officers and crew of Picket Launch No. 1, after deducting the shares paid to the fleet officers, Bear-Admiral Porter, Fleet Captain Breese, and Division Commander Macomb, the sum of $251,284.29. This sum was distributed by the officers of the Treasury Department in two payments, one under the decree of August 21, 1865, the other under the decree of February 11, 1873. In each of said payments all the officers and crew of the Picket Launch, or their legal representatives, except the said Cushing, Howarth, and Gay, were paid in proportion to the respective rates of pay to which they were by law entitled on the day of said capture; while the said Cushing, Howarth, and Gay were, by order of the Secretary of the Navy, paid in proportion to the rates of pay of the grades to which, after the capture, they were promoted, as set forth in finding VIII.'
    The aggregates of the sums respectively received by the officers and crew of the Picket Launch, or their legal representatives, in tlie two payments made under the said two decrees, were as follows: '
    W. B. Cushing................................ $56, 056 27
    F. H. Swan.....................'............. 31,102 50
    W. Stotesbury................................ 23,925 00
    C. L. Steever................................. 23, 925 00
    W. L. Howarth................................ 35,887 50
    T. S. Gay................................... 28, 710 00
    J. Woodman................................ 11,484 00
    S. Higgins..................................... 8, 613 01
    R. Hamilton................................. 5, 742 01
    E. J. Houghton............................... 4,593 60
    B. Harley.................................... 4,593 60
    W. Smith (D. G. George)...................... 4,593 60
    R. H. King................................... 4,019 40
    H. Wilkes.................................... 4,019 40
    L. Deming..................................... 4,019 40
    251,284 29
    
      Mr. Jamies Fullerton for the claimants, except the claimant Stotesbury.
    
      Mr. M. C. Cady for claimant Stotesbury.
    
      Mr. John 8. Blair (with whom was the Assistant Attorney-General) for the defendants:
    It is apparent from all the evidence in the case that this torpedo boat, picket boat, or steam launch was not a “ single ship” within the meaning of the act of Congress. She had no organized crew, for she was manned by officers and men, fifteen in number, belonging to seven different vessels of the squadron, and not one of claimants can show he was “borne upon the books of the ship.” The one-tenth gi ven by statute to the commander was intended for a vessel with its complement of sailors, gunners, stokers, engineers, and marines, and contemplated a reward greater than what the pay of his grade would give him.
    Claimants’ counsel contends that the man whose brain conceived and whose nerve and courage executed this scheme should receive only $25,128.43, while to Paymaster Swan of the Otsego should be given $45,794.80, and to the third assistant engineers $35,226,77 each.
    
      This question, however, has already been adjudicated by the prize court. All the present claimants were represented by counsel, and doubtless that counsel framed the decrees, which placed Cushing among those who were to receive in proportion to their respective rates of pay in the service. (See Meade’s Case, 9 Wall., 691; 2 C. Ols. R., 224; Comegys v. Vasse, 1 Peters, 193.) Claimants acquiesced in two distributions, well knowing that distribution meant exhaustion of the fund, and that if they received too little some one else was receiving too much, yet without protest or complaint they accepted the sums awarded.
    Clearly as to the second distribution claimants are estopped by their silence. They knew or could have known the principle on which the first distribution was made. They acquiesced in it at the time, and through their silence the money now claimed by them was paid out.
   Drake, Oh. J.,

delivered the opinion of the court:

These cases came into this court under the following act of Congress, passed August 8,1882, (22 Stat. L., 738, ch. 480):

“ AN ACT to refer the claim of the captors of the ram Albemarle to the Court of Claims.
11 Be it enacted by the Senate and Souse of Representatives of the United, States of America in Congress assembled, That the claims of the captors of the ram Albemarle, which was captured and destroyed October twenty-seventh, eighteen hundred and sixty-four, be, and the same hereby are, referred to the Court of Claims, with jurisdiction and authority to hear and determine the sanie, and all defenses thereto which are or may be open to the United States, and to render judgment thereon, with the right of appeal as in other cases; and if said court shall find that either or any of said captors has not or have not received his or their full and just share of the prize money awarded for the capture of said ram Albemarle, according to the proportions provided in the prize laws in force at the time of said capture,*and that he or they are entitled to claim and recover the same, the said court shall render judgment in favor of such captor or captors, respectively, or his or their legal representatives, for such sum or sums as shall in addition to the arriount already paid make the share of such captor or captors, respectively, equal to his or their respective share or shares of said prize money, according to the provisions of the prize laws in force at the time of said capture: Provided, That no suit shall be brought under the provisions of this act after one year from the date of its passage.
“ Sec. 2. That any judgment rendered by the Court of Claims under the provisions of the first section of this act shall be paid by the Secretary of the Treasury out of any money in the Treasury applicable to the payment of prize to captors; and if there shall not be money applicable for that purpose in the Treasury, or sufficient therefor, then the same, or any part thereof for which prize money in the Treasury is insufficient, shall be paid out of any money in the Treasury.not otherwise appropriated.”

Under this act the claims of all the officers and men of Piclcet Launch No. 1, the captor of the ram Albemarle, except those of her commander William B. Cushing, and master’s mates William L. Howarth and Thomas S. Gay, have been presented in this court within the time limited in the act. As the cases all rest on the same facts and law, one finding of facts and one opinion on the law will suffice for all of them.

Under the two decrees of distribution made by the United States District Court for the District of Columbia, set forth in the findings, each of the officers and men of said picket launch, or his administrator, was paid the distributive share apportioned to him by the Treasury Department, as set forth in finding XII; but each party now before the court claims that the amount so paid was not as much as' he, or his intestate, ought to have been paid; aud therefore each asks for a judgment here for an additional amount, under this language of said act:

“If said court shall find that either or any of said captors has not or have not received his or their full and just share of the prize money awarded for the capture of said ram Albemarle, acccording to the proportions provided in the prize laws in force at the time of said capture, and that he or they are entitled to claim and recover the same, the said court shall render judgment in favor of such captor or captors, respectively, or his or their legal representatives, for such sum or sums as shall in addition to the amount already paid make the share of such captor or captors, respectively, equal to his or their respective share or shares of said prize money, according to the provisions of the prize laws in force at the time of said capture.”

Under this provision the first question, in each case, is, whether the claimant, or his intestate, has received his full and just share of the prize money awarded to the picket launch for the capture of the Albemarle, according to the provisions of the prize laws in force at the time of the capture. If he has, his petition must be dismissed; if he has not, the next question is, whether he is entitled to claim and recover the same ” at this time and in this proceeding. We will consider these questions in their order.

In regard to the first, it is found that the claimants now in court, or their intestates, were paid, as follows :

F. H. Swan................................... $31,102 50
W. Stotesbury................................ 23, 925 00
C. L. Steever.................................. 23, 925 00
J. Woodman.................................. 11,484 00
S. Higgins.................................. 8, 613 01
E. Hamilton................................... 5, 742 01
E. J. Houghton................................ 4,593 60
B. Harlev.................................. 4,593 60
W. Smith (D. G. George)....................... 4,593 60
E. H. King............................... 4,019 40
H. Wilkes...................................... 4, 019 40
L. Deming.................................... 4,019 40

Whether the sum so paid each party was his full and just share” of the prize money depends on the terms of the act of June 30,1864, £‘ to regulate prize proceedings and the distribution of prize money, and for other purposes.” (13 Stat. L., 306, ch. 174.)

By section 10 of that act the distribution of prize money is regulated; and, after providing for certain specific shares, it thus reads:

££ After the foregoing deductions, the residue shall be distributed and proportioned among all' others doing duty on board * * * and borne upon the books of the ship, in proportion to their respective rates of pay in the service.”

A simple arithmetical computation is only necessary to disclose the fact, that if the payments of prize money made to Cushing, Howarth, and Gay, as set forth in finding XII, were lawfully due them, then the present claimants received all that they were entitled to, and can recover no more here; but if those payments were not lawfully due those three parties, then whatever excess they received over the true amount due them was just so much taken from the fund to be divided among the others; and whatever was taken must, under the act giving us jurisdiction herein, be made good to the present claimants, unless the government can establish a valid defense against their claims. The first point to be considered, then, is whether the payments made to those three were valid in law.

And, first, as to Lieutenant Cushing. The claimants contend that under the prize act he, as commander of the picket launch, was entitled to only one-tenth of the prize money awarded to the launch. On the other hand, the defendants claim that he was rightly paid “ in proportion to his rate of pay in the service,” partly as a lieutenant, and partly as a lieutenant-commander, under his subsequent promotion, dated back to the day of the capture.

By section 10 of the Prize Act it is enacted thus:

“ All prize money adjudged to the captors shall be distributed in the following proportions, namely: * * *
“ Fourth. To the commander of a single ship, one-tenth part of all the prize money awarded to the ship under his command, if such ship, at the time of the capture, was under the command of the commanding officer of a fleet or squadron or a division, and three-twentieths if his ship was acting independently of such superior officer.”

It is not claimed that the picket launch, when she made the capture, was acting independently of the commanding officer of the squadron, or of the division; on the contrary, the fact is found that she was acting under the Command of both. If, then, her commander came at all within the purview of that fourth clause, he was entitled to only one-tenth of the prize money awarded to the launch.

Against this view the counsel for the government urges that the pieket launch was not a ship at all within the meaning of that provision, and therefore that Cushing was not subject to that clause. If that position be true in fact and in law, then, of course, Cushing was not restricted to one-tenth; but we have not been able to see that it is true.

The word ship, in its generic sense, means any sea-going craft larger than an undecked boat. Benedict says that in the law the word is equivalent to vessel; and that it is not the form, the construction, the rig, the equipment, or the means of propulsion that makes a ship, but the purpose and business of the craft, as an instrument of naval transportation. (Benedict’s Admiralty, §§ 215, 218.)

There is a specific sense in which the term u ship,” applied to sailing vessels, means a craft having three masuts, with cross-yards on each mast, fitted to carry square sails on each, in addition to a number of fore and aft sails. When such a craft is provided with steam power as well as sails, she is called a steamship. In the specific sense, no barque, brig, brigantine, schooner, or sloop is a ship.

Now, let it be remembered that the prize act of 1864= was passed in time of war, when squadrons of our navy were blockading hundreds of miles of sea-coast, and were made up of vessels of almost every size, form, rig, and armament. Prizes of great value were daily liable to be taken. Congress passed that act to stimulate their capture; and every officer and man, on every vessel, big or little, no matter what its specific denomination, was on the lookout for them, and was ready to encounter great risks to capture them.

Under such circumstances the question naturally arises, whether Congress would be most likely to offer the benefits of the fourth clause aforesaid to the commander of every vessel making a capture when alone, regardless of her specific denomination, or to confine those benefits to the commanders of the very limited number of vessels entitled to the specific name of “ ship,” because of their having three masts, with cross yards, on each of which they could carry square sails. To state such a question is to answer it. The latter cannot be supposed possible.

Moreover, all through the act the word vessel seems evidently intended to apply to and include every species of sea-going craft employed in the Navy; but in the tenth section some unskillful hand substituted ship for vessel, without any apparent reason, so far as we can discern. If that substitution makes a change of sense at all, it is a change which introduces discord, unreasonableness, and incongruity into the act. But to treat the word ship as synonymous with vessel avoids all incongruity, and preserves the integrity and consistency of the act throughout.

But, furthermore, the thirty-second section of the áct seems to us to forbid question on this subject. It is as follows:

“ That in the term ‘ vessels of the Navy ’ shall be included, for the purposes of this act, all armed vessels officered and manned by the United States and under the control of the Department of the Navy.” to the word vessel wherever in that act that word is meant to refer to vessels belonging to our Navy, and cannot be fairly construed to mean any others.

Though these words seem to apply only to the phrase “ vessels of the Navy,” yet we think they may justly be applied also

The phrase “vessels of the Navy” occurs in the act only four times, once in section 10, twice in section 16, and once in section 23; and in each instance it is used to prevent those vessels, or rights connected with them, from being confused with privateers and letters-of-marque, or rights connected with them. Everywhere else than in those four instances the word vessel or vessels stands without the addition of the words “of the Navy,” for the simple reason that the constant repetition of those three words, in that connection, would have been an excrescence.

We therefore hold, that wherever in the act it appears by the context that vessel or vessels means a vessel or vessels belonging to the Navy, it must, under said section 32, be construed to include “ all armed vessels officered and manned by the United States and under the control of the Department of the Navy.”

If, then, ship and vessel are, in law and in this act, synonymous terms, it follows, of course, that Lieutenant Cushing was “the commander of a single ship” within the meaning of the fourth clause in question; And as the picket launch was, at the time of the capture, acting under the command of the commanding officer of the squadron, and also of the Division of the Sounds, it would clearly seem to follow that, under that clause, Lieutenant Cushing was limited to “one-tenth part of all the prize money awarded to the ship under his command.” The whole amount of prize money awarded to the picket launch was $251,284.29, one-tenth of which is $25,128.43, which wonld seem to be all that he was entitled to. But he was, in fact, paid $56,056.27, which is $30,927.84 more than the one-tenth, to pay which to him took just that much from the claimants now seeking relief here. If there was lawful authority for giving him that excess, the payment must stand as a proper deduction from the gross amount of prize money; but if it was a payment made without lawful authority, the claimants are not precluded by it from recourse here.

Lieutenant Cushing came to be paid $56,056.27 by computing his share of the prize money “in proportion to his rate of pay in the service,” and the counsel for the government contends that this was in accordance with law. To sustain that position he relies on the terms of the two decrees of the district court set forth in the finding of facts.

Each of those decrees closes with an order that “the remainder” of the prize money, after deducting costs, charges, and shares of fleet officers, should be “ distributed to the persons doing duty on board said torpedo launch in proportion to their respective rates of pay in the service.”

If the district court had jurisdiction to make that order, then the payment of $56,056.27 to Gushing was lawful and must stand. But had it that jurisdiction ? Let us see.

That the' court, in passing upon the matter of prize in the case of the Albemarle, was exercising a special and limited power, derived solely from, and exercisable only according to, the prize act of 1864, and that it could take only such judicial action, through such modes of procedure, as that act authorized and prescribed, cannot be for a moment questioned. In that case there can be no presumption in favor of jurisdiction; on the contrary, the proceedings of the court must be held illegal unless they were according to the statute, and the facts conferring jurisdiction appear affirmatively. (Thatcher v. Powell, 6 Wheaton, 119; Walker v. Turner, 9 ibid., 541; Harvey v. Tyler, 2 Wallace, 328.)

That the question whether that court had jurisdiction to make the order aforesaid may*be examined and determined here, cannot be doubted; for no rule of law is better settled than that the jurisdiction of any court, exercised in any case, may be assailed in other courts in which its proceedings are relied on by a party claiming the benefit of them (Elliott v. Pearsol, 1 Peters, 338; Shriver v. Lynn, 2 Howard, 43); and if there be found in them a total want of* jurisdiction, they may, by the court in which they are questioned, be rejected as a nullity, conferring no right and affording no justification. (Thompson v. Tolmie, 2 Peters, 157; Voorhees v. Bank U. S., 10 ibid., 449; Cook's Case, 9 C. Cls. R., 288.)

By section 4 of the Prize Act it is made the duty of the district attorney of the United States to file a libel against the prize property, and “proceed diligently to obtain a condemnation and distribution thereof.”

What is the meaning there, as elsewhere in the act, of the word distribution ? We have carefully read and considered the entire act, and have reached the conclusion that that word refers to two things: first, a division of the prize money between two or more vessels making or aiding in the capture, or between the capturing vessel or vessels and the United States; and, second, a division among the fleet officers and the officers and crew of a capturing vessel of the prize money awarded to her by judicial decree.

We have also come to the conclusion that the former division or distribution must be decreed by a prize court, and can be no otherwise made; but that the latter cannot be decreed by that court, but must be made by the Treasury and Navy Departments, and can be made by no other authority in the government.

By sections 9 and 10 of the Prize Act it is enacted—

u § 9. That in case a decree of condemnation shall be rendered, the court shall consider the claims of all vessels to participate in the proceeds; * * * [and] the court shall make a decree of distribution, determining what vessels are entitled to share in the prize, and whether the prize was of superior, equal, or inferior force to the vessel or vessels making the capture. And said decree shall recite the amount of the gross proceeds of the prize, subject to the order of the court, and the amount deducted therefrom for costs and expenses, and the amount remaining for distribution, and whether the whole of such residue is to go to the captors, or one-half to the captors and one-half to the United States.

“§ 10. That the net proceeds of all property condemned as prize shall, when the prize was of superior or equal force to the vessel or vessels making the capture, be decreed to the captors; and when of inferior force one-half shall be decreed to the United States and the other half to the captors.”

These are the only provisions which authorize the prize court to decree distribution jn cases of naval vessels. To any intelligent'reader it could not, it seems to us, be otherwise than manifest that there is not in them the least ground on which to base a claim of right in the prize court to make a distribution of prize money among individual captors; but that its whole authority is, in terms, confined to determining, 1. What net amount or residue remains for distribution; 2. What vessels are entitled to share in that residue; 3. Whether the prize was of superior, equal, or inferior force to the capturing vessel or vessels; and 4. Whether the whole of the residue should go to the captors, or one-half to the captors and one-half to the United States.

There is but one instance named in the act in which the prize court may itself make distribution among individual captors, and that is in the case of captures by privateers and letters-of-marque, concerning which it is declared in section 10 that the whole shall be decreed to the captors, unless it be otherwise provided in the commissions issued to such vessels; and in section 16 “ the distribution shall be made by the court to the several parties entitled thereto,” and that the court may appoint a commissioner to make such distribution.

On the other hand, as to distribution of prize money to the individual captors on a naval vessel, section 16 declares—

“ That the net amount decreed for distribution to the United States, or to vessels of the navy, shall be ordered by the court to be paid into the Treasury of the United States, to be distributed according to the decree of the court. And the Treasury Department shall credit the Navy Department with each amount received to be distributed to vessels of the navy; and the persons entitled to share therein shall be severally credited in their accounts with the Navy Department with the amounts to which they are respectively entitled.”

Here the words u to be distributed according to the decree of the court” might seem at first blush to justify the court in decreeing distribution among individual captors; but when we remember the explicit terms of section 9, and consider the manifest purpose of the act, as already shown, we have no difficulty in holding that the distribution referred to in those words is that between vessels, or between a-vessel or vessels and the United States'; and that those words confer no right on the court to decree that the residue be distributed among individuals in this or that proportion or by this or that rule. The rights of the officers and crew of the capturing naval vessel are not left to depend on a judicial ascertainment and fixation of the distributive share of each one; for section 10 declares how and in what proportions distribution shall be made, and section 16 imposes the duty of distribution upon the Treasury and Navy Departments.

So far, then, as the decrees of the district court assumed to order distribution to persons doing duty on the torpedo launch, it acted without any lawful authority, and its decree was in that particular coram nonjudice and void. But it was doubly so when it undertook to order that the distribution should be to “ the persons,” that is, a lithe persons “ doing duty on the torpedo launch, in proportion to their respective rates of pay in the service for the commander of the launch was, by clause four of section 10, first to be paid one-teuth part of all the prize money, and the distributive residue could not be found until that one-tenth should be deducted. Of that deduction the district court took no notice; and so Lieutenant Cushing came to be paid more than in law he was entitled to, and the other officers and the men of the launch, now heie as claimants, lost just the excessive amount paid him.

The wrong of this becomes more striking on a critical view of these words in the fifth clause of section 10:

“After theforegoing deductions, the residue shall be distributed and proportioned among all others doing duty on board * * * in proportion to their respective rates of pay in the service.”

“ The residue” was what remained “ after the deduction” inter alia of the commander’s one-tenth ; and those words commanded that residue to be distributed “among all others doing duty on board.” More mandatory and peremptory words might perhaps have been chosen to express the idea there intended, but they would not more plainly have indicated the legislative purpose that the comtaander should not share in the distribution of “ the residue.” The act of the officers of the Treasury and Navy Departments in making the payments they did to him was, therefore, wholly unauthorized, though they doubtless considered it lawfully ordered by the district court’s decrees.

But there was another element of illegality and wrong in the payments to Cushing, as also in those to Master’s Mates Ho-warth and Gay, which it devolves on us to rectify and remedy. As set forth in finding VIII, each of those three officers was promoted between the date of the capture and that of the first distribution of prize money. Cushing became commander and Gay became ensign, each to take rank from that date, while Howarth was made ensign from September 17, 1864, and master from the date of the capture. Each of those officers received prize money, not in proportion to the rate of pay he was by law entitled to on the day of the capture, but to the rate of pay appertaining to the grade to which he was subsequently promoted. This, we suppose, was allowed by the department officers on the theory that, as the promoted pay was given them back to the day of the capture, they were entitled to prize money in proportion to it; but in our view this was altogether erroneous.

In every case such as this the rights of the captors are declared by statute, and they become fixed at the moment of capture; and nothing less than a statute can devest, diminish, or unsettle the rights so fixed.

In every case where, as in this, a fight precedes the capture, there are necessarily deaths among the captors; but the lights of the dead are not thereby lost or impaired, but survive in their legal representatives, and cannot be affected by anything subsequently done by the survivors, by courts, by governmental departments, or by government officers.

If so with regard to the dead, why not as to the living? No-valid reason, as it seems to us, can be given why it should not be so, and only so, as to both dead and living.

From this it follows that whoever gets more than his “ full and just share of the prize money” diminishes, to that extent, the full and just share of every other one of the captors, living. or dead, not only without lawful authority, but, as we consider, regardless of law.

Our views on this subject are in direct accordance with those of the late Attorney-General Pierrepont (15 Opinions, 63), and we do not understand the counsel for the government now to claim that that officer’s opinion was incorrect.

From all the foreging considerations we have reached these conclusions:

1. That Lieutenant Gushing had no lawful right to prize money in proportion to Ms rate of pay.

2. That his rightful share of the prize money was the one-tenth of $251,284.29, and no more.

3. That Howarth and Gay were entitled to prize money only in proportion to the rate of their pay as master’s mates on the day of the capture.

4. That Gushing was paid $30,927.84, Howarth $18,979.02, and Gay $11,801.52 more than they were respectively entitled to in law, and that the amount to go to all the other captors was reduced by the aggregate of those three sums, namely, $61,708.38;

If these conclusions be correct, why are not these'claimants respectively entitled to judgments, in the words of the statute-giving us jurisdiction,

“ For such sum as shall in addition to theamount already paid make the share of such captor * * * equal to * * * his share * * * of said prize money, according to the provisions of the prize laws in force at the time of said capture! ”

The counsel for the government contends that all the present claimants were represented by counsel in the district court, and that, doubtless, the counsel framed the decrees which placed Cushing among those who were to receive in proportion to their respective rates of pay. But we have found as a fact, that none of the captors but Cushing was so represented in that court 5 and it is quite plain that he was directly and largely interested in having the decrees put into that shape. But even had all the captors been represented there, and had every one assented to that shaping of the decrees, it could not have made valid what, for want of jurisdiction in the court, was void. The reports of the country are full of decisions holding that no consent of parties can confer upon a court jurisdiction of a subject-matter not put by law within the scope of its powers.

The counsel further contends that, these claimants having acquiesced in two distributions, well knowing that distribution meant exhaustion of the fund, they are estopped by their silence, at least as to the amount involved in the second distribution, namely, $1.95,836.39, from now claiming any more. Whatever force this position might have at common law, we do not see how it can have any under the statute giving us jurisdiction of these cases. By it, if we “find that any of said captors has not received his full and just share of the prize money, * * * according to the proportions provided in the prize laws in force at the time of said capture, and that he is entitled to claim and recover the same,” we are commanded “to render judgment in favor of such captor” for such sum as shall give him his full and just share.

This mandate would seem to be a waiver by the United States of any estoppel growing out of acquiescence on the part of the claimants in the payments made in conformity to the decrees of the district court.

But it is. claimed that inasmuch as the statute declares' that the claims brought here in pursuance of it shall be subject to ■“all defenses thereto which are or may he open to the United States,” and, furthermore, requires us to find that the claimants are “ entitled to claim and recover” their full and just shares of the prize-money, therefore the defense of estoppel by acquiescence may justly be set up.

To this there seems to us to be a ready and sufficient answer. The reports of committees in the two houses of Congress show that Congress was perfectly advised, when it passed the act, that the claimants had received two payments of prize money. If that body had regarded the receipt of those payments as an estoppel of any claim for more, the manifest presumption is that it would not have passed the act at all. Having passed it, the stronger presumption arises,- that it did not mean, while authorizing the parties to appeal to this court for redress, that they should be driven hence by an estoppel, which Congress either ignored or set aside as unworthy of consideration.

The following table shows how the $251,284.29, awarded to the picket launch, ought to have been distributed in. ordej to conform to the Prize Act; what excess over their lawful shares was paid to Cushing, Howarth, and Gay, and what sum should be paid to each of the captors, except those three, so as, when added to what he has already received, to make up to him the share he was rightly entitled to, according to the terms of that act:

This table shows the very remarkable fact that the adjudged share of each of three of the subordinate officers of the launch is greater than that of Lieutenant Cushing, to whose extraordinary skill and gallantry was undoubtedly owing the success of the most daring adventure probably in all naval warfare. We are constrained by our views of the law to a conclusion which gives an assistant paymaster $20,665.37, and each of two third assistant engineers $10,097.57, more than the commander. Without doubt this is such a result as, if foreseen by Congress as possible in any case, would have been guarded against. We are free to say that we would avoid it in framing our judgment if we could. It is an accidental outcome of a capture such as might not happen again in all the wars that the world may know in all the future. That it occurred in this case was simply because a very valuable prize was captured by only fifteen men, to whom the whole of the prize money was awarded. Had only half of it been decreed to the launch, or had the number of the men in her been doubled, no such disproportioned result would have been possible. The defect in the law, however, is one that we have no power to cure. We can only administer the statute as we find it written, not as we think it ought to have been; and under its terms we have seen no way to avoid a result which certainly does not commend itself to our sense of justice.

Judgment will be entered in favor of each claimant, or his administrator, for the sum set opposite his name in-the last column of this table as due him.

NÓtt, J.,

dissenting:

I fully agree with every position taken and principle enunciated in the opinion of the court save one; and as this decision may hereafter -affect the rights of commanding officers situated like Lieutenant Cushing, I am constrained to express briefly the ground and extent of my dissent.

I am of the opinion that Congress could not have intended that the commanding officer of a single ship taking a prize should ever in any possible case receive less prize money than his subordinates of lower rank. Probably there is no person in this country of sufficient education to read the statute and sufficient intelligence to comprehend the meaning of its words, who would believe that Congress really intended that a special provision for a commanding officer should in some cases operate to benefit and in some operate to injure him. Probably every judge, lawyer, and, layman to whom the case was stated would say that it was an oversight, a mistake, a result that Congress never really intended.

What was really intended by the legislator, I think, should control what is casually expressed in a statute; and the general purpose of an act should not be overridden by the defect-* ive verbiage of any single provision which, taken literally, is abhorrent to the just and equitable purposes of the whole.

Lieutenant Cushing,*it is held, was entitled to only one-tenth of the net proceeds of the prize under the fourth subdivision of the Prize Act, because he was commanding officer of the launch. Let it be supposed that the commanding officer of the fleet had gone on this hazardous expedition in command of the launch, would he have been entitled to only one-twentieth under the first subdivision? Or let it be supposed that the commanding officer of a division of the fleet had gone, would he have been entitled to only one-fiftieth under the second subdivision ?

My conclusion in the present case is that the fourth subdivision confers a privilege and does not impose a restriction] that, the privilege belongs to the commanding officer as such; and that an officer thus situated may waive his privilege as commanding officer under the fourth- subdivision, and take simply his proportion as a person “doing duty on board” under the fifth subdivision.

To this extent I think the judgment here should be diminished.

Weldon, J., had not taken his seat when this case was heard, and took no part in the decision.  