
    *Fairclough v. Gatewood.
    [June, 1790.]
    Failure to Include in Manifest Part of Cargo of Vessel —Effect.—where the master of the vessel delivered the Invoices and hill of lading to the naval officer, and had a manifest made ont in the customhouse, under the inspection of the naval officer, if some of the cargo happens to he overlooked in the manifest, it does not forfeit the vessel and cargo.
    Sale of Cargo of Vessel by Court of Admiralty — -Right of Mariners to Wages. — Mariners have a claim to their wages, out of the proceeds of the sale of the ship, directed to he sold, hy the court of Admiralty.
    In June 1786, William Gatewood filed a libel in the court of admiralty, against the brigantine Molly, Robert Fairclough, master, and her lading, consisting of various articles, for a breach of the state revenue laws of that period, charging that the master imported in the said vessel, from Diver-pool, Great Britain, sundry merchandize, without making a true report to the naval officer at Tappahannock, where the vessel arrived ; but, on the 19th of May, 1786, made a false entry thereof, by concealing two bales of goods, a bundle and two bolts of sail cloth, three coils of cordage, 664 bushels of salt, and one pair of mill stones.
    The answer of Eairclough, the master, states, That the vessel arrived at Urbanna, on the 19th of May, 1786; and that he immediately went on shore to make an entry; saw Richards, the deputy naval officer, at the custom house, delivered him the invoices and bills of lading, and returned on board for a list of the seamen’s things; which he brought the next morning, and asked Richards to make out the manifest for him; but he refused: and thereupon Mr. Ross made it out, Richards occasionally overlooking and correcting it. That this over, Richards gave him a permit,which was delivered to the libellant, who is searcher at Tappahannock. That the invoice stated the salt to be 1542 bushels, the quantity entered; but the custom, in England, being to take in salt by the ton, it generally exceeds the estimate when measured. That the two bales of merchandize are in the bill of lading delivered to the naval officer. That the mill stones are comprised in an invoice sent to Gavan Lawson and company, of Norfolk, and the duty on them *has been secured in the custom house of that place. That the sail cloth and cordage were taken on board as ship’s stores, but the sail cloth is actually comprised in one of the invoices reported to the naval officer.
    There was a general replication to the answer; but, as the respondent was a foreigner, no jury could be called; and therefore the court proceeded to examine the witnesses, and record the testimony.
    Richards states, That the respondent delivered him the invoices, and the manifest: which last was made out from the invoices and bills of lading, by Mr. Ross; whom the deponent assisted in examining it after it was made out; and therefore did not require it to be sworn to. That he took a bond for the duties: but does not recollect that there was any invoice of mill stones, or bales of cloth marked I H.
    Ross speaks to the same effect; and that the master appeared, in every instance, to be fair; and expressed a great desire that every article on board, should be entered.
    Taylor, one of the passengers, says there were two bales of goods marked I H, on board.
    Shepherd was on board the vessel with the libellant, and saw two bales of goods marked I H, and a pair of mill stones which had not been entered. That the salt, on measurement, exceeded the quantity mentioned in the permit, 664 bushels; and that he heard the master say, that the nonentry of the two bales of goods was owing to the omission of the naval officer. That he saw some sail cloth and cordage, but does not know how much.
    Tyrer, the mate, says — That all the salt was delivered; and that the two bales of merchandize marked I H, were contained in one of the bills of lading carried on shore by the master, to the naval office.
    The exhibits consisted of 1. The permit. 2. The manifest. 3. A certificate from the naval officer, that the quantity of salt entered was 2594 bushels, as per manifest. 4. A bail of lading for two bales of woolen cloth marked I H. 5. A letter from captain Watson, at Norfolk, stating that *the duties upon the shipments Nos. 1, 2, 3, which included the mill stones, had been paid at Norfolk. 6. The invoices, in one of which are the mill stones.
    The court condemned the vessel, the two bales of merchandize marked I H, the mill stones, and the 664 bushels of salt as forfeited ; and ordered a sale. The seamen then filed claims for their wages; which the court, upon a hearing, dismissed with costs; and, upon the return of the sales, distributed the proceeds. Erom both which decrees there was an appeal to the court of appeals.
    Nelson, for the appellants,
    contended, that there was no false entry: Eor that means fraudulent entry; which could not be pretended here, where the master carried all the invoices and bills of lading to the naval office, and had a manifest prepared from them, under the inspection of the public officer, who even assisted in making it. That the salt was entered by the ton, and overrun the estimate upon measurement, from which no imputation arose as to any bodj': And, if the two bales of merchandize were omitted it proceeded from oversight in those who made out the manifest, as the materials for making it correct were before them. That the mill stone were entered, and the duty on them paid at Norfolk; and the master is proved to have manifested a desire to make a fair and full entry.
   On the other side, it was said, by the at-tornej’’ general, that the entry was, in fact, false; for the salt exceeded the quantity entered; and it did not clearly appear, that the bill of lading for the two bales of merchandize was read by Ross and the naval officer at the time of making out the manifest ; which the master ought to have attended to, and had the omission corrected.

The court, however, thought there was no evidence of fraud; and that the proceeds of the sales, subject to the seamen’s wages, ought to be restored to the owners, but at *the costs of the master and owners of the ship, as there was probable cause of seizure; and the following is the entry of the judgment made in the order book, ‘ ‘this day came the parties b3r their counsel, and the court having maturely considered the transcript of the record, and the arguments of the counsel on both sides, are of opinion, 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 appellants, the costs, by them, as well as by the said Robert in his lifetime, expended in the prosecution of the appeal aforesaid here. And, the court, proceeding to give such sentence as the court of admiralty ought to have given, do further decree and order, that the libel be dismissed ; that the sum of one thousand two hundred and thirty-seven pounds and one penny, the amount of the sales of the vessel and cargo be restored to the respective owners, retaining thereout twenty-four pounds eighteen shillings, the duty on the salt, and three pounds twelve shillings and six pence, the duty on the bale of goods in the proceedings mentioned, (which is to be paid to the treasurer for the use of the commonwealth,) and also retaining the sum of one hundred and twenty-two pounds three shillings and two pence half penny, for 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, in such manner as the district court, directed by law to be holden at King & Queen courthouse, shall direct; which is ordered to be certified to the said district court.”  