
    Percival against Hickey.
    the result of negligence, is the immediateI and direct cause i ofap injury, anj passvtet armh' w
    where a hd-sff^hasecsru£ ntutral vessel, supposing her to'heanmemy, pose of search, and in coming* up with her. *encefrunT¡lu¡ of the neutral vessel, which had hove to in the night, by which she ^as^unkanl the. neutral. commander of for die dama’ f¡eb«¡ng<ulcon-sidered as a marine tort lost, an action of trespass lies, at common law, at the suit of merely, of which a court of common law has concurrent jurisdiction with the instance Court of Admiralty.
    Under the last or general interrogatory, a witness examined under a commission may, in his answer, state facts not drawn forth by the previous particular interrogatories.
    Where a vessel has been captured and condemned, though the owner recovers the amount of the freight from the insurers, the seamen have not, therefore, a right to receive their wages So, where a neutral vessel was run foul of by a belligerent cruiser, and was sunk and lost, the seamen are not entitled to their wages, though the neutral owner recovered the full value of the vessel and cargo in an actien of trespass against the commander of the belligerent ship.
    Exemplifications of tne proceedings in another Gourt, between the same parties, for the same-cause ofaction, are not admissible in evidence under the general issue; but the pendency of another suit, in another Court, for the same matter, should be pleaded in abatement.
    THIS was an action of/respass,forrunning down the vessel of the defendant at sea, tried before Mr. Justice Yales, . m, . at the New~York Sittings, in April, 1819. ihe testimony ... . , , , .1-1 mi of the witnesses given at the trial was contradictory, ice following are the material facts in the case :
    The defendant was commander of the British sloop of war Atalanta, cruising in company with the Cleopatra, captain Pe-chell, his senior officer. On the 2d of May, 1810, in lati-7 ° tude about 32 degrees north, and longitude 33 degrees west, about noon,a signal was given for the chase of a vessel to :he ° n/i iii ¶ i • -/r\ windward, (the schooner Marifa commanded by the plaintiff*) The chase was continued until about 8 o’clock, in the evening, the wind increasing and blowing hard, and the Atalanta, firing guns at intervals, to bring the chase to, but which were disregarded. A little past 8 o’clock, (as T. 0.Sumner,asea-man on board the Atalanta.and a witness for the plaintiff, testified) the man on the forecastle of the Atalanta called out. that the schooner was under the lee bow with a light out. The Atalanta began to shorten sail, but before it could be done, she passed the Mary, firing some muskets and a gun as she passed. The defendant ordered the Atalanta to tack, but she wore round, and as soon as she wore, the man on the forecast]e called out “ hard a starboard, if not, we go into the schooner.” The defendant, who was standing on the poop» ordered silence, and directed the helm to be put á port, but before this could be done, the Atalanta struck the Mary. The Atalanta backed her sails ‘to get clear, and the Mary fell to leeward, and soon after disappeared, and was supposed to have gone down. The plaintiff and his crew came onboard the Atalanta, with nothing but the clothes which they had on at the time. The Atalanta struck the Mary between the fore and mainmast, and was herself much injured. The plaintiff’s witnesses were of opinion, that if the helm of the Atalanta had been put a starboard, when the man at the forecastle called out, she would not have struck the Mary, The witnesses for the defendant deposed, that the night was very dark, the wind blowing hard anda heavy sea running; and that the accident was owing to the darkness of the night; that the helm of the Atalanta was ordered to be put up, and the sails to be thrown back, but before this could be done, the vessels struck eacholher ;■ that the collision was wholly unintentional; that the chase was supposed to be a French vessel, and was under a heavy press of sail, endeavouring to escape. The plaintiff’s witnesses, the chief mate and T. 0. Sumner, stated, that the Mary was lying to when the Atalanta first passed her, and that during the chase, she had American colours flying at the. top-gallant-mast head.
    The plaintiff offered in evidence the answers of N. Par~ Tcer and T, Dodd, to the last interrogatory annexed to-a commission under which they were examined in, which an swers they deposed as to the ownership of the vessel, and the nature and value of the cargo with which the Mary sailed from Boston, in November, 1809, previous to her loss as above stated, which evidence was objected to by the de-1 fendant’s counsel, but the objection was overruled by the judge. It appeared from this evidence, that the Mary sailed from Boston in November, 1809, with a cargo of various articles, stated to be invoiced at above 15,000 dollars ; that she proceeded to Fayal, and thence to Tenerife, but without disposing of any of her cargo ; that she then went to Bona-
      tyisla. one .of the Cape de Verd islands, «here she traded, and after going to St. Jago, and other places, returned again to Bonavist-, from which place she sailed, having on board a cargo, of the value of 15,000 dollars, including 2,000 dollars in specie. The vessel was valued at 8,000 dollars. E. Howard, the mate of the Mary, was offered as a witness to prove the ownership of the. Mary, and the nature and value, of her cargo at the time she was run foul of by the Atalanta. His evidence was objected to ; but the objection was overruled by the judge. After he had given his evidence, the counsel for the defendant again objected to the witness, on the ground of interest disclosed during his examination, which rendered him incompetent; he having stated that besides his wages, which remained unpaid, he had an adventure on board the Mary, at the time she was run down, which Was worth about one thousand dollars, and which was lost by that accident; but the objection was overruled.
    The defendant’s counsel then moved for a nonsuit, on the ground, that the evidence as to the ownership of the vessel, and the value of the vessel and cargo, was incompetent, and too uncertain to go the jury; and, secondly, because the Court had no jurisdiction of the cause ; but the judge overruled the motion, and the defendant’s counsel excepted to his opinion.
    The defendant’s counsel then offered to prove that the loss of the Mary was not the result either of design or negligence on the part of the defendant, but was owing either to inevitable accident, or to the negligence or mismanagement of the plaintiff. The counsel for the plaintiff objected t© this evidence, asi nadmis-ible under the plea of notguihy,but the objection was overruled by the judge; and the depositions of the purser, and two of the crew of the Atalanta', and of Captain Pechell, of the Cleopatra, taken under a commission, were read. Several experienced ship masters were also examined as witnesses, and stated their opinions as to the conduct and management of the Atalanta, under the circumstances stated by the other witnesses.
    The defendant’s counsel offered to show that proceedings liad been instituted by the plaintiff against the defendant, in the High Court of Admiralty in England, to recover damages for the injury complained of, and produced and offered read an exemplified copy of the monition, issued at the suit of the plaintiff against die defendant, to proceed to adjudication in the case of the Mary, dated the 10th of November, 1810. The plaintiff’s counsel objected to this evidence, and the objection was sustained by the judge. The counsel for the defendant then offered in evidence, exemplified copies of depositions, with exhibits annexed, taken in the Admiralty Court, in the same case, but which did not contain the examinations of the mate and other witnesses on the part of the libellant in that case. The plaintiff’s counsel objected to this evidence, and it was overruled-by the judge, to whose opinion the defendant’s counsel excepted.
    The defendant’s counsel again moved for a nonsuit, on the grounds before stated, and, also, because, that if any action could be maintained, it should be an action on the case, and not trespass, but the motion was again overruled by the Judge.
    The cause was then summed up by the counsel on both sides, and the Judge charged the jury, that if they should believe, that the disaster was the result either of design or negligence in the defendant, they ought to find a verdict for the plaintiff, or if they believed it to have been intentional on the part of the defendant, supposing the Mary to be a French vessel, the' plaintiff would be entitled to a verdict; but if the jury believed the accident to have been involuntary and unavoidable, they ought to find a verdict for the defendant. That exemplary damages ought to be allowed, In case the defendant did the act intentionally, not supposing the Mary to be a French privateer; but if he did suppose her to be such, and did the act intentionally, or if it was attributable to negligence in the defendant, the jury might, in either, case, allow interest upon the value of the vessel and cargo from the time of the loss, not as interest, but as damages. The Judge, also, suggested to the jury, that if they should find for the plaintiff', they might state, as part of their verdict, whether the Mary was run down through design, or through negligence or mismanagement of the defendant ; and if they should be of opinion, that it was done through design, whether the defendant did it, supposing the. 
      Mary to be an enemy, or French vessel, or believing her to be a nehtral.
    The jury found a verdict for the plaintiff for 29,734 dollars and 94 cents damages, and declared as a part of their verdict, that the disaster was the result of gross negligence in the defendant.
    A motion was made to set aside the verdict, and for a new trial.
    
      D. B. Ogden, for the defendant.
    1. The action should have been case, not trespass. The jury have found, that the injury to the plaintiff was caused by the negligence of the defendant. Though there may be a diversity of opinion among the English Judges, as to what is the propef criterion of distinction between trespass, and trespass on the case; yet nothing will be found in the cases decided in England, or in our own Courts, to show, that case is not the proper form of action for an injury of this kind. In Ogle v. Barnes, (8 Term Rep• 188.) Lawrence, J. says, the injury “ may be occasioned by the wilful act, or by the negligence of the defendant; it is a question of evidence; if the former, trespass is the proper action; if the latter, trespass on the case.” That was an action for so negligently steering the vessel of the defendant, as to run foul of the plaintiff’s vessel, and case was held to be the proper action. In Scótt v. Shepherd, (3 Wils. Rep. 403 408.) jYares, J. says, “ if the act, in the first instance, be unlawful, trespass will lie; but if the act is prima facie lawful, and the prejudice to another is not immediate, but consequential, it must be an action on the case.” Blackstone, J, places it on the distinction between the injury being immediate or consequential. The jury, in this case, have found merely a negligence, or omission to do some act; not the commission of an act directly injurious. Admitting that the plaintiff might elude the belligerent right of search; yet if, by his efforts for that purpose, he prolonged the chase until dark, the consequence rests with him, not with the defendant. In Day v. Edwards, (5 Term Rep. 648.) Lord Kenyon said, the distinction between the actions of trespass, and trespass on the case, was perfectly clear. “ Thai if the injury be committed by the immediate act complained oí, ac^‘on must be trespass ; if the injury be merely consequential upon the act, that action upon the case is the proper remedy.” fn that case, the defendant furiously drove his cart against the plaintiff’s carriage. In Savignac v* Roome, (6 Term Rep. Iá5.).the declaration was that the defendant’s servant wilfully drove against the plaintiff’s carriage ; the injury was immediate, and trespass was held to be the proper acti'on. In MiManus v. Cricket, (1 East Rep. 106.) Lord Kenyon held, that for the wilful act of a servant, without the command of his master, trespass would not lie against the master, and so far the case of Savignac v. Roome was overruled. (Morely v. Gaisford. 2 Ren. Bl. 442.) In the case of Ogle v. Barnes, (Í! Term Rep. 188.) the action was for carelessly and negligently steering the vessel of the defendant, so that it run foul of the'plaintiff’s. vessel, with great force ; and it was objected, that trespass should have been brought, but the Court held, that an action on the case was the proper remedy. That case is precisely like this, for the jury have found, that the injury was caused by the negligence of the defendant. {Tripe v. Potter, cited by Grose, J.) In Leame v. Bray, (:3 East Rep. 59,3.) the defendant himself drove the carriage, and on the wrong side of the road, and if he had driven on the light side, the accident \yould not have happened ; he was doing an unlawful act, and trespass was held to lie. In the present case, the defendant was not at the helm, and was in the exercise of his lawful right. The case of Leame v. Bray has befen much doubted , (Rogers v. lfnbleton. TIugget v. Montgomery, 5 Bos Sr Pull. 117. 446.) but in Lotan v. Crossf (2 Campb. N. P. Rep. 461. Lord Ellenborough recognizes (the case of Leame v. Bray. In Govell v. Laming, (1 Campb.. P. Rep¡ 49j>) the defendant was himself at the helm. The case of Nicholson v. Mounsey and Syrnes, (15 East Rep. 584.) was an action on the case, and the captain of the sloop of war was held, not to be answerable for running down the plaintiff’s vessel, not being on deck, and the vessel being, at the time, under the immediate direction of his lieutenant.
    
      If the criterion between trespass and case be, as some of the English Judges have supposed, whether the act was lawful or unlawful, this action should be case, for the defendant, at the time, was in the exercise of a lawful right. If the Criterion be, whether the act was wilful or not, the action ought to have, been case, for the jury have negatived that the act was wilful. If the criterion be, the injury proceeding directly and immediately from the act of the defendant, then the action should have been case, and not trespass; for there was no act done by the defendant; and if. from the evidence, it appears, that putting the helm one way or the other, was the cause of the injury, the defendant was not at the helm; as regards him, therefore, the injury was not direct. The defendant gave an order to the helmsman to put the helm a port, but as that was not done, the vessels ■did riot come in contact in consequence of that order. The injury, therefore, was not from the order of the defendant, and he cannot be liable in trespass vi et armis ; he could only be so, if he had ordered the helm a port, with intent to run down the plaintiff’s vessel, and that order had been obeyed; but the jury have negatived any such inten-We are aware, that it has been decided, that if the injury arise from the negligence of the defendant, though it be immediate, the party injured has his election to treat the negligence of the defendant as the cause of action, and bring case, or to consider the act itself as the injury, and bring- trespass. (Blinn v. Campbell, 14 Johns. Rep. 432. 1 Cliitly PI. 127.) This doctrine, that both actions will lie, where there is an immediate, and also a consequential injury, is stated by Wedderburne, arguendo, in the case of Harker v. Birkbeck, (3 Burr. Rep. 1561.) and that appears to be the origin of it as laid down in Blinn v. Campbell, which was an action for negligently firing a pistol, and wounding the plaintiff in the leg. ' No doubt, that where a trespass has been committed, a party may, in many cases, waive the trespass, and bring an action on the case; but he can have no right of election, where no trespass is committed. It is the act done which must control and give form to (he action, and not the action to the act. No form. ©f action can make that a trespass which was net so before; and we contend, that the defendant did not commit a tres» pagg>
    2. Improper evidence was admitted. Under the general interrogatory, the witness cannot answer as to any new matter not inquired about in the particular interrogatories. If such a practice were allowed, it would destroy the use of interrogatories altogether, and be a surprise on the other party. But, if admissible, the evidence was too loose and vague to be allowed to go to a jury.
    Again; the testimony of Howard, the mate, was inad» missible. He had not received his wages, and if the plaintiff should recover the value of the cargo, the witness would be entitled to wages.
    3. The evidence on the part of the defendant, was admissible under the plea of not guilty, (La Caux v. Eden, Doug. 594.)
    4. The verdict was against evidence. It was founded on negligence only; and if, from the evidence, it should appear, that no negligence was attributable to the defendant, the verdict ought to be set aside. A judgment must be formed from facts which took place on board of the Atalanta, not from what appeared on board of the Mary, For it is only on board of the former vessel, that the witnesses could know any facts as to the negligence of the defendant. In this view, the whole evidence of the mate of the Mary ought to be rejected. (Here the counsel examined and discussed the evidence in the case.)
    5. This court has no jurisdiction of the cause. It belongs to the Admiralty Court. It is an action against a belligerent cruiser, for improper conduct,.in the exercise of his right to capture enemy’s property, or to make search on board of a neutral vessel, for enemy’s property, under the law of nations. The right of search grows entirely out of the law of nations. This Court cannot decide on the rights of war. It is not competent to apply the law of nations to the case. A belligerent has a right to search, and if the neutral resists, he may be captured and condemned as prize of war. How can this Court say that the attempt of the plaintiff to elude the right of search, and bis conduct during the chase, did not render him liable to capture and condemnation as prize ? It appears from the case that the plaintiff himself consider ed that his case was cognizable only in the Admiralty. He went to England, for the purpose of prosecuting the defendant, and commenced a suit against him in (he High Court of Admiralty, and the mate says, that he was examined in that Court, as a witness in the cause. Surely, the plaintiff would not, as matter of choice, have applied to that Court; he must have been advised, that a Court of Common Law had no jurisdiction of his case. There are many cases of marine trespass to be met with in the books ; but not a case can be found of an action at common law, against the commander of a belligerent vessel, for a trespass, in exercising the right of search. {Le Caux v. Eden, per Buller, J. Doug. 601.) Courts of Admiralty have jurisdiction of marine trespasses, and of all questions incident to prize. If a belligerent boards a vessel on the high seas, and finding she is a neutral, proceeds to plunder her, it is a case of admiralty jurisdiction. {The Amiable'Nancy, 3 Wheat. Rep. 546 ) In Novion v. Hallett, (16 Johns. Rep. 327. in Error.) Chancellor Kent lays it down as an established principle, that a Courtof Admiralty has exclusive jurisdiction, not only of all matters of prize, but of all incidental questions growing out of the question of prize. Are not the transactions which take place in attempting to make prize, as much incidental to the question of prize or no prize, as those which take place after a capture ? Must not the conduct of the belligerent commander, in the one case as well as in the other, be judged of by the law of nations ? Suppose, that in bringing a neutral to, for the purpose of search, the belligerent cruiser fires a gun into her, which does an injury, is that not a case of admiralty jurisdiction? In the Cáseo (Faith v. Pearson,(6 Taunt. 439.) a British cruiser boarded an English vessel, supposing her to be an American, and after detaining her until he was satisfied that she was notan American, he dismissed her. In an action of trespass brought against the commander of the ship of war, Gibbs, chief justice, nonsuited the plaintiff, saying, that according to Le Caux v. Eden, no action could be maintained for taking a vessel, where the captors were acting under a belief that sfe was a subject of prize; and the Court of C. B. refused to set aside the non-suit. The true reason is given by Chief Justice Lee, in Key 
      & Hubbard v. Pearse, (Doug, 606.) that prizes are acquisitions Jure belli and jus belli is tobe determined by the law of nations, not by the municipal law of a particular country.
    
      T. A. Emmet, and H. Sedgwick, contra.
    1. As to the form of the action. This question has been very fully ¡examined in the case of Scott v. Shepherd. (2 Wm. Bl. 392. 3 Wils. 403.) Gould, J. said, the line was very nice between case and trespass; and he thought there were many ^gases where both or either would lie. In Starr v. Jackson, (11 Mass. Rep, 521.) Ch. J. Parker observed, that “'originally, it would certainly have been immaterial whether the damages should be settled by an action of trespass or an action on the case : the wrong being direct and immediate to the property damnified, both actions being founded in tort, and the plea to each being the same, as is also the principle' on which the damages would be ascertained.” In Slater v. *'Baker, (2 Wils. 362.) the court said, “ That the plaintiff ought to receive satisfaction, for the injury was admitted: and the Court would not look with eagle’s eyes to see whether the evidence applied exactly or not to the case ; when they saw that the plaintiff had obtained a verdict for such damages as he deserved, they would' establish such verdict, if possible.’’ In Learne v. Bray, (3 East’s Rep. 593.) Lawrence, J. said, that “ it was more convenient that the action should be trespass than case ; because if it be laid in trespass, no nice points can arise upon the evidence, by • which the plaintiff may be turned round upon the form of action, as there may,, in many cases, if case be brought; for there, if any of the witnesses should say, that in his belief the defendant did the injury wilfully, the plaintiff will run the risk of being nonsuited.” In an action of trespass vi et armis, which is what is called & formed action, and the writ for which is found in the Register, the declaration would be good, without alledging that the act was done wilfully or negligently; and the precedent for the declaration in this case was found in Thompson’s Entries, p. 251. If, then, the facts averred in the declaration are sufficient to maintain an action, and if all those facts are proved at the trial, surely the action cannot be defeated by the proof of other things done by the defendant, which do not amount to a perfect justification, so as to take away all right of action. If the plaintiff proves all the facts alledged in his declaration, how can he be nonsuited? How can the defendant say that he was not guilty of those acts, because he can prove a negligence, perfectly consistent with them, and in itself injurious and Unlawful ? If zoilfulness entitles the plaintiff to bring trespass, and negligence compels him to bring case, then wilfulness and negligence are the gist of the respective actions ; and every action of trespass vi et armis, which does not aver that the act was wilfully done, would be bad on general demurrer, which is contrary to every day’s experience. Besides, if wilfulness is the gist of the one action, and' negligence of the other, what becomes of all those immediate and forcible injuries, which are not intentional, but accidental ? What becomes of the consequential injuries which are wilful ? If wilfulness does not enter intó the gist of the action of trespass vi et armis, and it consists in the force and directness of the injury, the proof or no proof of wilfulness, can only affect the quantum of damages. Chitty, (1 Chitty PI. 122.) lays down the rule, that “ if the injury be forcible, and occasioned immediately by the act of the defendant, trespass vi et armis is the proper remedy ; but if the injury be not, in legal contemplation, forcible, or not direct and immediate on the act done, but only consequential, then the remedy is by an action on the cased’ Here, then, is a broad and clear line of distinction, for the guide of the party and the pleader. It makes no difference that the injury was unintentional and the act lawful, (l Chitty PL 128, 129. 27 Hen. VII. 28 a. Hob. 134. 1 Str. 593. 634. 3 East. Rep. 593. 600. 1 Esp. X. P. Rep. 55. 2 Hen. & Mun. 423. 14 Johns. Rep. 432.)^, It being, then, the undoubted and settled rule, from the yearbooks down to the present time, that where the injury is immediate and forcible, trespass is the proper action, whether that injury be accidental, negligent, or wilful, it is surprising that any diversity of opinion should exist on the subject, or that any difficulties should have arisen from the circumstance of a ship or carriage being in motion at the time of the injury. In Leame v. Bray, (3 East, 593.601.) Le
    
    
      Blanc, J.
    says; that “ in'actions for running down ships at sea, difficulties may occur; because the force which occasions the injury, is not immediate from the act of the person steering. The immediate agents of the force are the wind and waves, and the personal act of the party rather consists in putting the vessel in the way to be acted upon.” From this it would seem, that wilfulness was evidence that the injury was the immediate act of the party, and that negligence might be evidence, that it did not arise from his immediate act, but from some operation of the wind and waves, in vtdiich he did not participate. Such appears to have been the case of Ogle v. Barnes, (8 Tem. 188.) Lord Ellenborough, in Leame v. Bray, speaking of that case, says, “ that it did not appear that it was the personal act of the defendants, or that they were on board of the ship at the time.” But though negligence may, sometimes, concur to show that the injury did not result from the immediate act of the defendant, yet, neither in fact or law, will it always do so, nor is it a safe criterion on this point. It is admitted that if the running foul be wilful, trespasá is the only action. Why ? Because the motion the defendant intended to give to the ship, whether given by his act or ordeits, shall be considered as given by him, through the instrumentality of the winds and waves, which science has enabled him to use as propelling powers. Suppose, then, the motion so designedly impressed on the ship, by .the act or orders of the defendant, to be continued, and that his negligence consisted in not taking due precaution to prevent the plaintiff’s vessel from sustaining injury by the motion, or force impressed-on the ship, would not the injury sustained be as directly and •;jinmediately the result of the force and motion impressed on the ship, as in the case of design ? Indeed, if the injury could not be considered as the immediate act of the defendant, because “the immediate agents are the wind and waves,” it would be very difficult to support an action fora forcible personal injury, not inflicted by the personal strength of the defendant; as when a person fires a gun or pistol, and the gun-powder and spark are the immediate agents. The law would, also, be different as to vessels pro.pelled by steam, or by wind and waves. ...The rnaxim is, 
      guia facit per alium, facit per se, “ He who orders an act,' from which a forcible injury directly follows, is a trespasser.’’ (1 Lord Raym* 39. Salk. 613. 3 Wils. 403.) In Cole v. Fisher, (11 Mass. Rep, 137.) the defendant, by discharging a gun, frightened the plaintiff’s horse, who ran away and broke the carriage of the plaintiff, and trespass was held to be the proper remedy. In Cojrell v. Learning, (1 Campb. N. P. Rep. 497.) Lord Ellenborough said, that he could never understand the grounds of the difficulties which had been raised on the subject. That his opinion was ways uniform, that the only just and intelligible criterion was, whether the injury complained of arose directly, or followed consequentially, from the act of’the defendant. “ If, in the dark,” he observes, “ I ignorantly ride against another man on horseback, this is undoubtedly a trespass, although I was not aware of his presence, until we came in contact. It makes no difference that here were parties sailing on ship board. The defendant was at the helm, and guided the motions of his vessel. The winds and (he waves were only instrumental in carrying her along, in the direction which he communicated. The force, therefore, proceeded from him, and the injury of which the plaintiff complained, was the immediate effect of that force.” The law must be the same for ships and carriages. In the case of Leame Bray, where the accident arose from the darkness of the night, the defendant was no otherwise blameable than for driving on the wrong side of the road. If he had been on the right side of the road, and had driven his carriage against that of the plaintiff at rest, would not the action have been trespass ? (Dayv. Edwards, 6 Term Rep. 618. Sa-vignac v. Roome, 6 Term Rep. 125. MlManus v. Cricket, 1 East Rep. 106.) The whole doctrine was fully discussed*4" in Leame v. Bray, which has never been over-ruled, though Sir James Mansfield, in Rogers v. Imbleton, (5 Bos. & Pull. 117.) intimated some doubt as to it. (5 Bos. and Pull. 446.) The most that can be made of the decision of the C. P. is, that an action on the case will lie; and Chilly cites it in support of the position, that where the injury is attributa-bie to negligence merely, the party has his election to bring case or trespass^ Lord Ellenborough, in the case which has been cited, alludes to the difference of opinion, and ex* presses his own opinion, in strong terms, and it has been acquiesced in. (Lolan v. Cross, 2 Camp. N. P. Rep. 464. 11 ¡Mass, Rep. 59. 2 Lord Raym, 3032. 2 Maulé v. Selwyn, IT. 1 Johns. Rep. 511. 3 Johns. Rep. 466.)
    2. As to the objection to the answers of Parker & Dodd; they were examined as to the value of the vessel and cargo, on the 10th interrogatory, and they were asked, under the 13th interrogatory, as to “ what cargo was on board.n There could be no surprise on the adverse party. The interrogatories were sufficient to apprise them of the nature and object of the evidence sought; but this objection comes too late, and ought not to be favoured, especially as the de fendant has not shown that he has, in fact, been surprised, or that there has been any mistake in the evidence.
    As to the mate’s evidence ; he was not interested. By the loss of the freight, his wages were lost \ though the plaintiff should recover damages for the loss of his property, it would give the seamen no right to an action for their wages*
    3» Under the plea of not guilty, the defendant cannot give in evidence any matter of justification. That must be specially pleaded and put upon the record. (Milman v. Dolwell, Knapp v. Salsbury, 2 Campb. Jf. P. Rep. 378. .500.)
    4. It is objected, that the verdict is against evidence. There was evidence on both sides, and the court will not send the cause to another jury, unless in a very strong and palpable case. The belligerent is bound to exercise his right of search, in such a manner, as not to injure the'neutral. (2 Azuni Mar. L. 202.) (Here the counsel entered .into an examination of the evidence detailed in the case.)
    5. As to the jurisdiction of the Court; a confusion is created by using the expression “ Court of Admiralty,” in an equivocal sense. In England, the Court of Admiralty consists of two Courts ; the instance Court, and the prize Court : The former is governed by the civil law, the laws of Oleron and the Customs of the Admiralty, modified by statute : The latter decides according to the law of nations, and the course of the admiralty. (2 Bro. Civ. & Adm. L. 29.34. 43. 123. Godolph. Adm» Juris. 40.) The Instance 
      ■Court of England does not decide according to the cominon law, or the law of nations, but according to its own peculiar .code. It has cognisance of matters concerning shipping, the powers, rights and duties of persons employed in ships, and of the torts committed by or upon them, or damages done to ships. These matters are inquired into, and decided in the instance Court of Admiralty, not because they have any connection with the law of nations, but because they are injuries against persons or property, for which this Court, like a court of common law, has provided remedies. Neither the instance Court of Admiralty, nor a common law court* institute actions founded on the law of nations; though both of them do not hesitate to discuss and decide on that law, when it incidentally comes before them, as matter of de-fence, or as limiting the rights .and claims of the plaintiff. The cases which have arisen on policies of insurance, show that this Court will examine into the law of nations. (I Johns. Cases, 363. 1 Caines’ Rep. 60.) So, in Tabbsv. Ben-delack, (3 Bos. & Pull. 207; note,) the court decided an important question on the law of nations ; that in regard to neutrality, a man is not considered as belonging to the country of his birth or adoption, but to the place of his domicil at the time. By the municipal law, a man is a citizen or subject of that country only, in which he was born or is natu-ralised. By the law of nations, he is deemed a citizen of the country in which he resides. So when this court decided the case of Wheelwright v. Depeyster, (1 Johns. Rep. 471.) they determined an important question of the law of nations; and the District Court of South Carolina, and the Supreme Court of the United Stales, when they decided the same question differently in Rose v. Himely, (4 Crunch, 241.) were acting not as prize courts, but as instance courts. So, in the case of Griswold v. Waddinglon, ( 15 Johns. Hep. •57. S. C. 16 Johns. Rep. 438.) this Court and the Court of Errors decided according to the law of nations, that all contracts between enemies were void. Almost all the authorities cited were taken from the decisions of the prize courts. In Bell v. Potts, (8 Term Rep. 548.) the Court of K. B. directed the cause to be argued by civilians, because it was a question of the law of nations. Whets this Court, in Goodrich v. Gordon, decided, that a ransom was a yaUd contract, their decision was founded on the law of nations.' So, in Saloucci v." Johnson, (Park on Ins. 498.) the Court of K. B. decided, that a neutral, by the law of nations, was not bound to submit to the right of search. Indeed, the books are full of cases, in which the courts of common law examine and decide on questions incidentally arising on international law, as well as the laws of foreign countries, though they will not entertain an action founded on those laws, except in the case of a ransom, which, in truth, is an anomaly. It is not, therefore, correct to say, that whenever the Court perceives, that the case must be decided by the law' of nations, it ceases to have jurisdiction.
    It may be supposed, that as the defendant was an officer commanding a national ship, acting under ^public commission, the matter may partake of a national concern, and the suit ought, iherefore, to have been brought in a Court of the United States, either of admiralty or comr mon law jurisdiction; but if it had been brought in such a Court, it would still have been tried by the same law as in this Court. ^ But there is nothing 'in the supposition, that a state Court has not equal cognizance of the case. It is a personal tort, not a national question. It is the defendant himself who must answer for his-conduct, not his government. Vallel (Liv. 2. ch. G. s. 73, 74.) says, that such acts of individuals are not to be imputed to the nation, unless it approves of, or ratifies them. If the offender is within the power of the state offended, he may be laid hold of, and compelled to do justice. (Id. s. 75.) If this be the doctrine in criminal cases, a fortiori, it must be so, in regard to civil injuries.
    Again; this objection, as to the jurisdiction of the Court, comes too late. Independent of the question of prize or not, any question arising which involves the law of nations, and which is to be matter of defence, or an exception to the¡,jurisdiction, ought to be specially pleaded. It is too late, after a plea in bar, to object to the jurisdiction of the Court. (Smith v. Elder, 3 Johns, Rep. 105. Cowp. 72. Doug. Gil.) Taking goods as prize is, prima facie,-exercising a lawful right. This is not the case of the lawful exercise of the right of search; but is, prima,facie, an tort, for running down the plaintiff’s vessel on the high seas, and any matter of justification should be specially pleaded. It will not be denied that this Court has jurisdiction of a marine trespass. (Hallet v. ffovion, 14 Johns. Rep. 273.) In Le Caux v. Eden, {Doug. Rep. 614. note.) Lord Mansfield says, “ a thing being done on the high seas does not exclude the jurisdiction of the Courts of common law. For seizing, stopping, or taking a ship, upon the high seas, not as prize, an action will lie ; but for taking as prize, no action will lie. The nature of the question excludes; not the locality.” To take away the jurisdiction of the common law Court, it must be either a question of prize, or such a taking or act as gives the one party a right to compel the other to treat it as prize. Whatever excludes the jurisdiction of a Court of common law, excludes, also, that of the Instance Court of Admiralty. This shows the importance of keeping in view the marked distinction, as to jurisdiction, between the Instance Court and Prize Court. Again ; if this is a case which can be tried only in a Prize Court, it can be tried only in the Court of the captor. Though this doctrine has been much disputed, it is now finally settled by the Supreme Court"of the United Stales, in the case of the Invincible. (1 Wheat. Rep. 233.) Then, what is the extent of the surrender of jurisdiction demanded of the-plaintiff? If he cannot obtain justice here, he can look for it no where, but in a British Prize Court. If the sovereign of the captor has a right to consult his own dignity in requiring all questions of war to be decided in his own Courts of Admiralty, the Courts of this country have duties to per-forin, and are bound to protect their own citizens. Then what can a British Prize Court try ? It derives all its authority from its commission, by which it is authorized “ to proceed upon all, and all manner of captures, seizures, prizes, and reprisals of all ships or goods that are, or shall be taken;” and the monition, in setting forth the Judge’s authority, adds what may be called his consequential jurisdiction ; “ and, also, to hear and determine all, and all manner of causes and complaints, as to ships and goods, seized and taken as prize, specially constituted and appointed.” 
      (Doug. 614. 2 Brown's Civil and Adm. Lato, 209, 210.) Whatever does not come within the words of this commission, is not cognizable in a Prize Court. But, it is said, this was a capture, and that the plaintiff attempted to elude the right of search. To constitute a capture, there must be a taking of possession. The plaintiffhad ceased all effort to escape; his vessel was lying to, ready to submit to the search of the defendant. It must be the exercise of the hostile right of capture, to give jurisdiction to a Prize Coart; Suppose that no accident had happened, and the defendant, after exercising his right of search, had dismissed the plain* tiff’s vessel, would this be a capture, or an acquisition, of property, jure belli? .Suppose, that during the search the defendant had struck the plaintiff :,must the plaintiff have sought his remedy for,this personal injury in a Prize Court ? True, if the plaintiff’s vessel had been carried in as prize, or for adjudication, perhaps, in that case, the personal tort, as incident to the capture, plight be tried in that Court. Prize or no prize, says Lord Marisfeld, is the boundary line, (Doug. Rep. 615.) For prizes, are acquisitions jute belli. The right of search is not a jus belli.. Grotius no where treats of the right of search as .among the jura belli. The jura belli are laws regulating, controlling, and systematising the carrying on of hostilities between enemies. They exist only between parties at war .withicach other. The right of search exists between a belligerent and a neutral, or parties not hostile to each other, and is ,founded on treaties, on the customary and conventional law of nations, for the preservation of peace and amity. In Le Caux v. Eden, it was doubted by respectable lawyers, whether Courts of Admiralty had exclusive jurisdiction as, to questions incident to a capture. But, now, that question is, perhaps,! too well settled -to be again controverted. It is .true, that Prize Courts have given damages, in certain cases, for personal torts, but these were cases of injuries arising during, or after the capture. And, in alt cases, we believe,'those who have commissions .give security for their good, behaviour. . Where there is no capture, the only remedy for the injury, in an Admiralty Court, is in th^.Instance Court. «The case of the Amiable Nancy, (3 Wheat. Rep. 546.) has been cited. That was clearly a case of instance jurisdiction. In the District Coúrts of the United States, the prize and instance jurisdiction are blended together. There is no form by which to distinguish them. They are only known by the subject matter. The proceedings in the case cited, were those of an Instance Court. There were no examinations in preparatorio. Rome filed his libel as an original suit, and brought in his adversaries to answer.
    Again : it is argued that the plaintiff sued for redress in the British Court of Admiralty; but it was in the Instance Court, and that Court entertaining the suit, shows that it was not a prize question. If he had gone to the prize court, he would have been told, “ we have no jurisdiction; for here is no capture, seizure, or prize. So far from being the only Court that can afford you redress, it is, perhaps, the only Court in the world that cannot take cogniizarice ofyour case. Foreign Courts of Admiralty have’their prizé and instance courts blended together, as in your own country. Here the jurisdiction of the prize Court is special and distinct.” (Vide Mostyn v. Fabrigas, Cowp. 161. Greenwood v. Cur-tiss, 6 Mass. Rep. 358. 2 Wheat. Rep Appendix, No. 1. 1 Madd. Rep. 15. 1 Rob. 287. A Rob. 408. 3 Dallas, 6. 159. 2 Crunch. 170.)
    
      Wells, in reply.
    Originally, actions of trespass were laid vi el armis el contra pacem, for an individual wrong, involving not only the private injury, but the public peace; and besides the damages, a fine to the king was imposed, and the defendant was imprisoned until both were paid. These actions were among the brevia formata found in the Register. Afterwards, under the authority of the statute of West. 2. actions of trespass on the case were introduced. These new writs in case, were laid vi et armis et contra pacem, or not, according to the circumstances of the particular case. The true criterion was, whether there was a breach of the peace, or not; and not whether the injury was direct or consequential. This distinction is of later date, and is first mentioned in Fitzherbert, Nat. Brev. So that, according to the old rule, neither trespass, nor trespass on the case, vi et armis et contra pacem, could be brought in a case, like the present, for an injury committed on the high seas, because it could not involve a breach of the peace of the realm. This, of itself shows, that the common law Courts could not, originally, have jurisdiction of marine trespasses. They belonged exclusively to the Admiralty, whose jurisdiction has been since usurped. It is “difficult to sustain upon principle, although not upon authority,” says Judge Story, “ that trespass will lie, at common law, for a marine tort on the high seas.” (Maisonnaire v. 'Keating, 2 Gall. 342.) It is top late, however, now to draw this usurpation into question. Time has sanctioned it. But if the act, charged to be a trespass, is a seizure, or stopping as prize, the Admiralty still retains its original exclusive jurisdiction. That this is the real character of the alleged trespass in this case, will hereafter be shown ; but, for the present, supposing a cause of action to exist at common law, it is contended, that an action on the case, not trespass, would lie.
    Trespass cannot be maintained, unless the act complained of was wilful, or the injury was caused by direct force, . produced by the agency of the party complained of. Now, on neither principle can the present suit be maintained. It was avowedly brought on the ground of being a wilful act, and evidence was introduced on the trial for the purpose of proving it to be so; but the jury have negatived its being wilful, and have ascribed the injury entirely to negligence, for which, case is the proper remedy..
    In Beckwbfoh v. Shoredike and others, (4 Burr. Rep. 2092.) it was left to the jury to say, whether the trespass was intentional, or only a mere involuntary accident; and the Court of K. B. recognised the distinction between a mere accidental, involuntary trespass, and one wilful or voluntary ; and said, that the former was not a cause of action,1 though Lord Ellenborough is made to say, in Leame v. Bray, that he did not find the dictinction laid down in any of the cases, that in order to maintain trespass, the act must be wilful. In Savignac v. Roome, (6 Term Rep. 128.) the action was case, for, wilfully (by the defendant’s servant) driving against the plaintiff’s carriage, and the judgment was arrested, because, the act being wilful, the plaintiff should have brought trespass vi el amis. So, in Tripe v. Pot
      ter, cited in that case, which was an action on the case, for wilfully rowing a boat against the plaintiffs, he was non-suited for the same reason. In Ogle v. Barnes, (8 Term Rep. 188.) the action was case, for running foul of the plaintiff’s vessel, and a motion in arrest was made, because^ it should have been trespass; but the motion was denied, as the charge was, that the injury was caused by the negligence oí the defendant. All the judges said, that if the running foul had been wilful, trespass would be the proper remedy. The case of Nicholson v. Mouncey, (15 East, 384.) was, in all respects, like the present, except as to the question of prize; yet that was an action on the case. In Leame v. Bray, (3 East, 593.) the principle that wilfulness was essential to maintain trespass seems first to have been departed from; for in Shepherd v. Scott, the act was unlawful in itself, and was, besides, in its origin, wilful. In Leame v. Bray, too, both the Court and the counsel distinguish it from the case of a collision of vessels, where, it seems to be admitted, the remedy should be case. It is conceded, also, in that case, that the only instance to be found in the books, where it was held,that an action of trespass for running down a vessel would lie, was that of Tripe v. Potter, .in which the act was alleged to be wilful. Hugget v. Montgomery was an action of trespass vi et armis; and the orders were given by the pilot who had 'charge of the defendant’s vessel. Rogers v. Imbleion was an action on the case, and there was a demurrer, for that it should have been trespass; but the demurrer was overruled. In these two cases, the Court doubted the authority of Leame v. Bray. In Webb v. Drake, referred to in East, 384. and in Bowcher v. Movidstrom, (1 Taunt. 568.) the act was case, for running foul of the plaintiff’s vessel; yet the injury was the consequence of the order given by the captain. In the latter case, the action, it is true, was trespass, but the act complained of was wilful, in cutting away the mainsail of the plaintiff’s vessel. Fetteplace and others v. Braddick and others, (5 Bos. & Pull. 182.) and Bennett v. Moría, (1 HoWs JV. P. Rep. 359.) were actions on the case, for running foul ■of the plaintiff’s vessel. Thus, it appears, that the intention or wilfulness of the act was, at .one time, at least, the. criterion by which to determine, whether it was trespass 0/ Qot. all(j ¡¡. jg ¡-0 {je regnetted that it has been departed from, because it is the most natural and simple.
    Again ; in order to maintain trespass, it is necessary* ae-cordingto the cases, in which that of Leame v. Bray takes the lead, that the act of the party complained of must, be with force, and the immediate cause of the injury. The defendant, however^ in the present case, did no act whatever. He merely'ordered the helm «port, but before the order was executed, the accident happened; so that it was not occasioned by any act or order Of the defendant. If the defendant, then, is tó be held liable, in this form of action, it is not for any act done by hirif; but, according to the finding of the jury, for the Omission of duty on the part of his officers, or for negligence and want of due care, which are of the very essence of an action on the case.
    2. It was, also, a ground of defence, that the loss of the Mary was an inevitable accident, and, therefore, trespass would not lie. The evidence went to the very charge* and was adrtiissible under the general issue. In answer to what is Said by Lord Ellenborough ip Coveil v. Learning, we may appeal to the opinion of Lord Mansfield, in Beck-with v- Shoredike; that ain involuntary trespass is not a causé of action, and to the good sehse of the rules of pleading. The evidence, at all events, was admissible to shoyv the character of the transaction, and that it was a taking as prizef for trespass, at common law, will not lie in such a case: “ Upon the general plea of not guilty,’’ says Mr. J. Bailer, “ no action can be maintained where the question relates to prize.” (Le Canx' vfiEden, Doug. Rep. 594 and the cases cited in the note," especially Livingston & Welch v. M-Renzie. Faith v. Pearson, 6 Taunt. Rep. 439.)
    3. The verdict was against evidence. Here thé eovtnr. sel examined the evidence very minutely, and urged, that the principab witness of the plaintiff was contradicted in some of the material parts of his evidence; but that all the witnesses agreed, that the collision took place soon after the Atalanta wore. Thé Atalanta, standing on hér larboard tack, passed the Mary, who was to windward, standing on the.same tack. Shortly after, the Atalanta attempted t© Kick, in order to fetch the Mary, but being unable todo so, she wore and fell to leeward. Now, if the Mary had continued the, tack she was on, when the Alctlanta passed her, the accident could not have happened. The defendant did not even know, that the Mary had hove to, and he must have supposed her, when his own ship , wore, still standing on the tack, on which she was when he passed her. The Mary saw the Atalanta, and should have taken care to avoid her. The fault was on her side, for she had the wind. If she was lying to when the Atalanta passed her, why did she not continue in the same position ? Why did she change her tack, which alone was the cause of the collision. The result of the evidence is, that the defendant might have hove to while there was day light; that both vessels wore, without either knowing that the other had done so. The difference of position, which,was, the necessary consequence, the darkness of the night, ar.d both vessels putting their helms up at;, the same time, sufficiently account for. the accident, without imputing any fault, or negligence to the defendant. It is, clearly a case of accidental collision, or a casual misfortune, arising from mutual mistake, which has produced a mutual loss, for which neither party ought to be made responsible to the other., s , , .
    4. As to the jurisdiction of the Court:1, It is not pretended on the part of the defendant, that the Instance Court of. Admiralty had cognizance of the case, and the proceedings by the plaintiff in the Court of Admiralty, which were offered in evidence, and rejected by the Judge, show, that it was the -prize, and not-the instance, side, of the Court in whicji they were instituted- Indeed, the Prize Court only •could entertain the suit. ' {The George, 3-Rob. 211.) The learned counsel, thereiorp, might,, have spared the labour of pointing out the distinction between the. two. Courts, of which we were perfectly-aware, as well as of, the one which could alone be, resorted todn, a .case of this kind. Courts of common law, no doubt, . take notice of the Jaw of nations, ©n; questions arising incidentally,,, where, the cause of action is of municipal origin; but it seems,to be admitted by the plaintiff’s counsel, that if the cause vof action arises under the law,of nations, the suit must be in the Admiralty Court-, This principle is clearly established in Jlnthon v. Fisher, (D0Ug' Rep. 648 note to Cornu v. Blackburn,) which was a case on a ransom bill, and the judgment of the Court of K. B. was reversed, in error, on the ground, that it being an action arising under the law of nations, a Court of common law had no jurisdiction. The same principle is recognized in Maissonaire v. Keating. '(2 Gallis. Rep. 341, 342.) This is not a case of a marine trespass, but a pursuing, stopping, and detaining, by a belligerent as prize. The evidence, on both sides, agrees in showing, that: the disaster in question arose out of the exercise of a belligerent right. The object, in the first instance, was search, and sending in for adjudication, if the search should warrant it. In Lindo v. Rodney, {Doug. Rep. 613.) Lord-Mansfield lays down the distinction* with his usual clearness. “ For seizing, stopping, or taking a ship on the high seas, not as prize, an action will lie.” Such has been the doctrine of the English Courts, from Le Caux v. Eden, to Faith v. Pearson. (4 Campb. N. P. Rep. 457. 6 Taunt. Rep. 439.) The cause of action, if any, was pursuing and stopping the Mary for search, and with a view to prize, and arose opt of the law of nations. The belligerent right of search does not belong to the municipal law. The plaintiff’s vessel was chased as an enemy, or, at least, with a view to search for enemy’s property. The exercise of this right of search leads to the capturing of neutral vessels, and car. vying them in, for adjudication, in the Prize Courts of the belligerent. {The Maria, 1 Rob. 340. The St. Jean Bap-tista, 5 Rob. 33.) The defendant, independent of his com-, mission, would have been a trespasser, in chasing the Mary. He had no right to chase, but under the law of nations. It is true, that the belligerent must exercise his right of search, according to the law of nations, otherwise he is responsible for damages. But in what Court is the injured party to seek redress ? We answer, in a Court of the Law of Nations, because it is that law which is violated, and the tribunals which are erected under it, are alone competent to punish the offender, and to redress the injured. But it has been said, with a sneer, that if this Court does not take cognizance of the case, the plaintiff must be driven to seek justice in a British Court of Admiralty. If this Court has no jurisdiction, it will leave the plaintiff to seek his remedy in what other tribunal he may, as was done in the case of ,iYavion v. Hallett iu the Court of Errors. (16 Johns. Rep. 323.) It is the quo animo, with which the plaintiff’s vessel was chased and stopped, that fixes the character of the transaction, and assigns jurisdiction to the Court, to which it belongs to inquire into the conduct of the pursuer and captor, and to acquit or punish him, according to the circumstances of the case. If the defendant has violated any law, it is the law of nations, by abusing a right given to him by that law, and exercisable only under that law. It is an acknowledged principle, that “ if a Court has no jurisdiction of the principal question, it has none of its consequences and incidents.” (Case of Ferguson, 9 Johns. Rep¿ 239. 241.) Now, what was the principal question in this case? Prize or no prize ? To be determined, in the first instance, by search. The moment the Atalanta commenced, her pursuit of the Mary, she acted under a belligerent right, for the due exercise of which, the defendant was answerable only in a Prize Court. The right of chase is founded on a public or private commission from the government, the validity of which may be drawn in question, and can only be examined in a Prize Court. It is said, that here was no taking as prize. But the Mary was pursued for the purpose of capture as prize,' and was brought to, as such; though, before she could be boarded, the accident happened. What led to this accident ? The chasing for the purpose of seizure or search. Suppose, after being detained and searched by the defendant, the Mary had been dismissed, will it be pretended, that the defendant would have been . liable to an action of trespass ? If there be any irregularity in the exercise of this right, must not the Court which has jurisdiction of the principal matter, have cognizance, also, of this as an incident? How, otherwise, is the line of separation to be drawn between the jurisdiction of the Courts of common law, and Admiralty ? Suppose, she had been taken possession of, and lost by the negligence of the captors, it will not be pretended, that trespass would he, or that. the admiralty would not have jurisdiction %^ind suppose an irregularity before capture, is a Court of1 common law to have jurisdiction of that, ^nd the Admiralty Court of the subsequent seizure ? If the misconduct of the captor, after capture, cannot oust the Admiralty of its jurisdiction, it is not easy to see how any misconduct connected with the taking can have that effect. If the Mary had been actually taken possession of as prize, then it must be conceded, that no action would lie, whatever might have been the misconduct of the defendant; but recourse must have been had to the Admiralty alone. Yet, it is urged, on the other side, that if there be misconduct in the act of taking, or attempting to take possession as prize, the aggrieved party may resort to a common law Court. Can jurisdiction be separated by such imaginary boundaries ? The whole belongs to a common law Court, or to the Admiralty, As the entire proceeding related to a matter of prize, the Court of Admiralty must embrace the whole subject. Again; suppose the Mary had been an enemy, or was carrying contraband of war, she would have been lawful prize of war, and no action could have been maintained for taking or sinking her voluntarily ; consequently, no action could lie for sinking her, through negligence. Thus, the question of prize or no prize, springs out of the transaction, in whatever light it be viewed. “If,’’ says Mr. Justice Story, in the case already cited, “ a question of prize be necessarily involved in the foundation of an action, whether it be a-principal or an incident, I shall be glad to learn how the common law can draw it ad aliud examen, than the prize jurisdiction.’’ Thp English cases on this subject are all collected, and the doctrine which they contain, so fully and learnedly examined by his Honour, the Chancellor, in the opinion delivered by him in the case of Novion v. Hallelt, in the Court of Errors, that it would be useless to attempt to add any thing to the weight and authority of that opinion.
    The argument, thus far, has proceeded on the ground that the Mary was only pursued and stopped, but not taken. It remains to show, that she was, in effect, captured. The Mary had hove to, and submitted, as much as if, being an enemy, she had struck her colours. She was under the control of the defendant, and it is for an injury received while within his power, that this action is brought. It was equivalent to an actual or hostile capture, in the case of The Rebeekah, (1 Rob. 227. 233.) Sir William Scott says, “ the first question that will occur, applies to the time of the capture, whether that is to be dated from the actual taking of possession, or the previous striking t of the co-lours ; and, I think, that the striking of the colours is to be deemed the real deditio.” Here, then, the heaving to was equivalent to the striking of colours, and was such a capture as gave jurisdiction to the Court of Admiralty; and that Court has competent power to afford full and adequate relief, not only in regard to the property of all persons on board, but for any personal injuries alleged.
    It only remains to show, that the Prize Court of Admiralty in England, does take cognizance of cases of this kind, and that it is competent to afford full and adequate relief. In the language of Ch. J. Willes, “ if there is a remedy in the Admiralty Court, that is sufficient.,,
    Where property is taken as prize, and not libelled, or is libelled irregularly, or is lost by the negligence or misconduct of the captor, proceedings may be instituted in the Admiralty to compel him to proceed to adjudication, and in default of which he will be decreed to pay the value of the property, and all damages. {The Betsey, 1 Rob. 93. The Corier Marítimo, 1 Rob. '¿87. The Huldah, 3 Rob. 335. The Karason, 5 Rob. 291. The William, 6 Rob. 316. The Susannah, 6 Rob. 48. The Der Mohr, 3 Rob. 129 4 Rob. 314. The Lucy, 3 Rob. 208. The William, 4 Rob. 214.) These cases point out the remedy that should have been pursued, in this case, by the plaintiff, if the injury of which he complains, really existed. This Court cannot afford him relief, without assuming a jurisdiction that does not belong to it.
   Spencer, Ch. J.

The verdict of the jury was for the plaintiff; and agreeably to an intimation from the judge, that if they found for the plaintiff, they should state thq grounds of their verdict, they added, that the disaster mas the result of gross negligence in the defendant. Among the points taken, on the motion for a new trial, it has beenstre-tlU0US]y urge¿ by the defendant’s counsel, that the action should have been case and not trespass. This point is open 10 defendant; because in the progress of the trial, a motion was made for a nonsuit, after the plaintiff had gone' through with his evidence, on that ground. •

We must consider, after the finding of the jury, that the., injury done, by running down the plaintiff’s vessel, was not’ designed, or intentional; but that it proceeded from the defendant’s negligence^ as captain and commanding officer of the Atalanta.- We are bound, also, to consider the negligence as a personal one, imputable to the acts and omissions of the defendantand that these acts and omissions were gross and palpáble. '

That the force by which the plaintiff’s vessel was destroyed, was the immediate cause of her destruction, proceeding from the collision, cannot be doubted ; and then the question arises, whether, if such an act, producing the injury immediately and directly, be the result of negligence, and not of a -wilful intention, the action ought to be trespass or case. In the case of Leame v. Bray, (3 East, 593.) all the authorities and .preceding cases bearing on this question, were reviewed. That was trespass, charging the defendant with having drove and struck a single horse chaise which the defendant was driving along the highway, with such great force and violence upon and against the plaintiff’s curricle, which his servant was driying, that by means thereof, the servant was thrown out, and the horses ran away with the curricle ; and the plaintiff", to preserve his life, jumped and fell from the same, and fractured his collar bone. It appeared in evidence, that the accident happened in a dark night, owing to the defendant’s driving his carriage on the wrong side of the road, the parties not being able to see each other, and that if the defendant had kept the right side of the road, there was ample room for the carriages to pass without injury j but it did not appear that blame w-as imputable to the defendant in any other respect; and on an objection, that'the injury happened from negligence, and was not wilful, and that the proper action was case and not trespass vi et armis, the plaintiff was nonsuited. After argument, the non-suit was set aside by the unanimous opinion of the Court. Lord Ellenborough said, the true criterion seemed to be, according to what Lord Ch. J. De Grey said, in Scott v. Shepard, (3 Wils. 411. S. C. 2 Bl. Rep. 892.) whether the plaintiff received an injury by force from the defendant; that if the injurious act be the immediate result of the force originally applied by the defendant, and the plaintiff be injured by it, it is the subject of an action of trespass vi el ar-mis, by all the cases both ancient.and modern : that it was immaterial, whether the injury be wilful or not; and speaking of the case of Ogle v. Barnes, (8 Term Rep. 128) he approved of the decision, though there were words which implied force by the act of another; but it did not appear that it must have been the personal act of the defendants, it not being alleged that they were on board, the ship at the time ; and he observed, he was not aware of any case of that sort, where the party himself sued, having been on board, this question had been raised. Mr. Justice Lawrence, who gave an opinion in Ogle v. Barnes, observed, that he did not mean to say, that the distinction turned on the wilfulness of the act, and he so understood Mr. Justice Grose ; that what he principally relied on there, was, that it did not appear that the mischief happened from the personal acts of the defendant. That the defendant negligently did such an act, might be sustained by showing that it was done by his servant in his employ, in the absence of the master. Grose, J. expressed himself very decidedly; he observed, that in looking into all the cases from the year book in the 21 H. VII. down to the latest decision on the subject, he found the principle to be, that if the injury be done by the act of the pa,rty himself at the time, or he be the immediate cause of it, though it happen accidentally, or by misfortune, yet he is answerable in trespass. Le Blanc, J. is equally explicit. He says, “ In all the books, the invariable principle to be collected is, that where the injury is immediate on the act done, there trespass lies; but where it is not immediate on the actdone3 but consequential, then the remedy is in case.” He illustrates the distinction by the case of a log thrown in the highway. If, at the time of its being thrown, it hit any person, it is trespass ; but if, after if be thrown, any person receive an injury by falling over it, it is case. He observed, that it was chiefly in actions for running down vessels at sea, that difficulties may occur, because the force which occasioned the injury is not so immediate from'the act of the person steering. The immediate agents of the force, said) are the winds and waves, and the personal act of the party rather consists in putting the vessel in the way to be so acted'upon ; and whether that may make any difference in that case, he would not then take upon himself to determine. I do not consider it necessary to review the Antecedent cases. They all support the distinction taken by the judges in Leame v. Bray. 1 will merely refer to some of them. (6 Term Rep. 128. 8 Term Rep. 191. Hob. 134. 1 Str. 596, 5 Term Rep. 649. 1 Str. 636.) It was strongly insisted, that Leame. v. Bray was overruled by Nicholson and another v. Mounsey & Symes, (15 East, 383.) but that-is a mistake. That was a case against the captain and first lieutenant of a sloop of war, for negligently conducting the ship, so that, through mere negligence, bad management, and want of care, she, with great force, ran foul of and struck the plaintiff’s ship, by reason whereof, it was sunk and lost. The cause was referred, and the arbitrator reported, thatat the time the mischief happened, Symes, the lieutenant, was the commanding officer of the watch, and was upon deck and directing the steering and navigating the sloop of war ; that Mounsey was not on deck, nor was he called upon by his duty to be so; that he had not the appointment of the officers; but he, as well as they, were appointed by the Commissioners of the Admiralty. The arbitrator awarded for the plaintiff 4,500 pounds, damages, against both the defendants. The case underwent a full discussion upon the question, whether Mounsey was liable at all; and the Court held him not liable, on the ground, that he was a servant of,his majesty, stationed onboard that ship, to do his duty there, together with others, appointed and stationed there by the same authority, each having their several duties to perform, and that there was no personal interference of the captain with the act of the lieutenant, t>y which the damage was occasioned, and that he ought not to be liable for the act of another, whom he did not appoint or employ ; and the award was set aside as regarded Moun-sey, but judgment was given against the lieutenant. The case does not detail the evidence, nor was there a word said about the form of the action; but it does not admit of a doubt that, had Mounsey, the captain, been on deck, in the discharge of his duty, when the accident happened, that he would have been made responsible, for Symes, who was the acting officer, and directed the steering and navigating the sloop of war, was held answerable, without question or doubt. The case of Stort v. Clements, (Peake's N. P. 107.) was decided on the same principle, as was also the case of Boucher v. Naidstrom, (1 Term Rep. 569.) The case of Covel v. Laming, (1 Camp. N. P. Rep. 497.) which was subsequent to the case of Leame v. Bray, was an action of trespass for running the defendant’s ship against the plaintiff’s. It appeared, that when the accident happened, the defendant stood at the helm, and that he wished to steer clear of the plaintiff, and if he was to blame, it was through ignorance and unskilfulness. On the objection that trespass would not lie, Lord Ellenborough confirmed the doctrine he had delivered in Leame v. Bray, and said, it made no difference that the parties were sailing on ship board. The defendant was at the helm arid guided themotionsof his vessel. The winds and the waves were only instrumental in carrying her along in the direction which be communicated ; the force, therefore, proceeded from 1 i u, and the injury the plaint if sustained was the immediate effect of that force ; and the plaintiffhad a verdict.

The Court of Common Pleas have, undoubtedly, questioned the correctness of the decision in Leame v. Bray, though they have not overruled it. In Rogers v. Imbleton, (5 Bos. & Pull. 117 ) the de.claration was, that the defendant drove his cart against the plaintiff’s horse, with force and violence, whereby he was hurt and bruised, by and through the mere negligence, inattention, and want of proper care, of the defendant. The declaration was demurred to on the ground that it ought to have been trespass. The Court intimated a clear opinion, that as the injury was alleged to have arisen from mere negligence,inattention, and want of care, thé. demurrer conW n°t be sustained. Ch. J. Mansfield said, that it was not to be considered, tbattbe case oí Leame v. Bray was overturned by that decision ; but, he said, it might, on a proper case, be proper that that decision should be re-considered. In Huggett v. Montgomery, (5 Bos. & Pull. 446.) the,action was trespass for driving a certain ship or vessel, whereof the defendant was commander, to and upon and over a certain boat of the plaintiffs, and sinking her. It appeared, the defendant was master and owner of the vessel committing the injury,.but though on board at the time, did not give the order which caused the accident; but the pilot did. The jury were of opinion, that the accident arose from negligence, and gave a verdict for the plaintiff. The Court Were of .opinion that trespass could not be maintained against the defendant, and said, the casé differed from Leame v.Bray, intimating, at the same lime, doubts as to the authority.of that case. In Turner and others v. Hawkins and others, (1 Bos. & Pull. 472.) the plaintiff declared in case, for sinking his boat, and alleged the injury to have happened by the-defendants not slackening the-rope or line by which his boat was drawn, and then stated that the plaintiff’s boat was driven and forced across the^ stream and sunk. There was a verdict for the plaintiffs, and on a writ of error to the exchequer chamber, the error assigned was, that the act complained of was a trespass vi etarmis. Eyre, Ch. J. said, that when the objection is taken after verdict, the point ought to be very clearly made out. That it was clear that the cause of action was a nonfeasance, in not slackening the rope, and that it was fair to infer, that it was not intended to charge the defendants with wilfully driving their boat against that of the plaintiffs, and that all the circumstances were referable to the nonfeasance, which made it a complete action on the case, and the judgment was affirmed. In Blinn v. Campbell, (14 Johns. Rep. 432.) the plaintiff sued in an action on the case, and it appeared that the defendant, being a trooper, had wounded the plaintiff’s leg, by negligently firing a pistol. We held, that if the injury is attributable to negligence, though it were immediate, the party injured has his election, either to treat the negligence of the defendant as the cause of action, and declare in case. or Co consider the act itself, as the injury, and to declare in trespass. The rule is laid down in the same manner in 1 Ckitty PI. 127. and is warranted by the cases he cites^

I am perfectly satisfied, from a review of the cases, that if (he defendant is liable at all, this action is appropriate, and that it ought to have been trespass rather than case, as the injury was immediate, and from gross negligence.

2. It.has been objected, that the answers of P'arker and Dodd to the thirteenth interrogatory, ought not to have been read to the jury. These answers relate to the value of the vessel and cargo, and the interrogatory is the general one. It has been contended, that under that interrogatory, nothing can be answered, but what has been before specifically inquir ed into. This has not been shown to be the practice in courts proceeding according to the civil law. I perceive no abuse likely to follow from allowing the witnesses to state every material fact under that interrogatory, not before drawn forth by the special interrogatories, and such, undoubtedly, was the object and end of the general interrogatory. It certainly was not intended to have the witnesses repeat what they had before said; that would be idle and unnecessary. As the facts stated by the witnesses are pertinent, I am of opinion, that they were properly allowed to be read to the jury.

3. It has been insisted, that the verdict was contrary to evidence. This has opened a wide range of inquiry, and I have carefully, and attentively read, and considered the testimony stated in the case. Very much depends on the credibility of the witnesses ; and it became a very important part of the inquiry, whether the accident was attributable to design or negligence on the part of the defendant, or whether it was involuntary and inevitable. It was distinctly placed before the jury, that if it was the result of design or negligence, that then the defendant was answerable for the consequences ; but if it was involuntary and inevitable, then he was not answerable, and a verdict ought to be found in his favour. It was a most material fact, in this view of the case, whether the night was so dark, that those on board the Atalanta, either with the naked eye, or with night glasses, could see the Mary, or not, when she was at a considerable distance from the Atalanta. If she could be seen at a reasona^^e distance, say half, or a quarter of a mile, then the conclusion seems inevitable from all the testimony, that the collision might have been avoided. If Ephraim Hozo-ard, the mate of the Mary, is to be believed, the night was not so dark but that the Mary might have been seen so far distant as to have been avoided ; and it appears from the evidence of Captain Pechell, that he saw the operations of the Mary from the Cleopatra, at half past nine, and when the vessels closed. This last ship was at a much greater distance from the Mary than the Atalanta ; and it appears, that the Atalanta came up with the Mary, a little after eight o’clock, when muskets and a carronade were fired at the Mary., Captains Coffin and Collins, after being informed of the manoeuvres of the vessels, agree in saying, that if the Atalanta had starboarded her helm, she would, in a length and a half, have cleared the Mary, if the latter was right a head; and they concur in the opinion, that the Atalanta must have seen the .Mary,'from the course she steered. It seems to be agreed, on all hands, that a chasing vessel is bound to take measures to avoid running foul of the chase. All the witnesses concur in saying, that it would have been extremely imprudent, as regards the safety of the Atalanta, to have intentionally run foul of the Mary, and those acquainted with Captain Hickey, exonerate him from any suspicion of such intention. The jury have, in effect, acquitted him of any design to run down the Mary. They say it was the result of gross negligence. This was a matter of fact, and I cannot pretend to means of deciding the fact superior to what thejury possessed; and, on such a questional am free to acknowledge, that an honest, capable, and upright jury, are the most competent to come to a correct concldsion. I cannot, therefore, say, that the verdict is against evidence.

• 4. An exception has been taken to the admission of E. Harvard, the mate of the Mary, as a witness, on the ground that if the plaintiff recovers it is equivalent to the performance of the voyage, and the insuring of freight; and that he will then be entitled to be paid his wages. It has been conceded, that in the case of capture and condemnation, though the owner recovers the amount of freight against the insurers, the mariners are not entitled to wages. There has been no decision of which we are apprised upon the present point. From analogy to the admitted principle, that a recovery from the insurer does not give the mariner a right to recover wages, there would seem to be no objection to Howard, on the score of interest; and I conclude that he was a competent witness.

5. Although the defendant’s counsel excepted to the opinion of the jtidge, at the Circuit, excluding copies of the proceedings instituted by the plaintiff, against the defendant, in the High Court of Admiralty of Great Britain to recover damages for the injury which is the basis of this action ; and also for excluding certain affidavits, with exhibits annexed, taken in the Admiralty case, it has not, as I understand, been made a distinct ground of argument, that these proceedings were emitled to be admitted. The pendency of another suit for the same matter could, at most, only be pleaded in abatement. It is not pretended that- any decision was ever made in the admiralty ; nor that any witnesses examined in that suit are dead, or in a situation not to be reexamined. Under these circumstances, those proceedings were properly excluded.

6. It has been strongly insisted, that this Court has not jurisdiction of the cause ; that it is a case of admiralty, not of common law' cognizance.

The case of Novion v. Hallet, (16 Johns. Rep. 327.) decided in the Court for the Correction of Errors, and the learned and elaborate opinion delivered by Chancellor Kent, settles, iucontrovertibly, that if the original taking was as prize, the court of Admiralty has exclusive jurisdiction of the case $ that the jurisdiction is not affected by the fact that the capture was illegal, or violent, or unjust; that where the admiralty jurisdiction has once attached, by means of such taking as prize, it never can be devested by any matter subsequent, so as to give a Court of common law jurisdiction over the case, as a tort or trespass ; and that the admiralty having jurisdiction of the principal subject, thereby acquires jurisdiction of all the incidents. That court did not profess to decide in what cases Courts of common law have jurisdiction of marine torts ¡ the case itself did not require an examination of that question, and no opinion was pronounced upon it.

Dr. Brown, in discussing the powers and jurisdiction of the admiralty, (2 Brown’s Civil and Ad. Law, ill.) observes, that collisions, or ships running foul of one another, by which one or both are sunk or battered, afford cases of the most frequent occurrence; and he says, that for this damage, if done at sea, remedy may be had in the admiralty. -He then comes to consider whether for sueh injuries, courts of common law have a concurrent jurisdiction. This, he says, may have been doubted, but he thinks it clearly settled, in practice, that they have jurisdiction where the proceeding is not in rem, but merely for damages. He says, Sir 'Leoline Jenkins considered the bringing an action of trover, for a tort on the high seas, as an invasion of the authority of the admiralty. Sir L. Jenkins shows the superior facility and convenience of a suit in the admiralty, where the whole subject matter can be investigated and adjudicated in a single suit, whereas, at law, many might be necessary.

It is well known to those conversant with Admiralty proceedings, that the Court is two-fold : an Instance Court, which takes cognizance of contracts made, and injuries committed on the high seas, and the Prize Court, which has jurisdiction over prizes taken in time of war. The commissions to hold these Courts are distinct, though usually given to one person. The Instance Court is governed by the civil law, the laws of Oleron, and the customs of the Admiralty modified by statute. The Prize Court is to bear ,and determine according to the course of the Admiralty, and the law of nations ; (“2 Brown’s Civil & A dm. Law. 29.) and it cannot be doubted, that when we find it asserted in the books, that for a marine tort merely., redress can be sought in the admiralty, it is always meant in the Instance Court.

It is not to be denied, that the defendant, as the commander of a vessel of war belonging to his Britannic majesty,' hada right, war then existing between England and France, of visiting and searching neutral merchant ships upon the high seas. This, by the laws of nations, is an incontestible right of the lawfully commissioned cruisers of a belligerent nation. A mere attempt, on the part of the neutral merchant vessel, lo escape before any possession is taken by the cruiser, is not unlawful, nor does it draw after it the consequences of a condemnation. {Chilly’s Laws of JVa-lions, 192. 194, 195.) In the present case, therefore, the pursuit of the Mary by the Atalanta, for the purpose of a search, was a lawful act. But it has been insisted, that the defendant, and those on board the cruising ships, believed the Mary to he a French vessel ; that she was pursued as such, with intention to capture her as prize of war ; and although it turned out that she was not a French vessel, but an American, and a neutral, yet the acts oí the defendant were done with intention to capture her, and that, therefore, the question is one of prize or no prize, and of admiralty jurisdiction. I cannot assent to this conclusion. The imention to capture the Mary, as a prize, depended altogether on the supposition, that she was a French vessel. It did not exist, if she was, in fact, an American vessel. It was, therefore, a conditional intention, depending on the event. As the character of the Mary, during the chace, was uncertain, the defendant was bound to conduct himself in such a manner, that his acts should be justified by the event. The intention, in a given event, to make her a prize, did not conslitute the actual pursuit of a prize. There is nothing in the whole course of the transaction to show that in point of fact, the defendant treated the Mary as a prize, or that when her national character was discovered, he would have detained her as prize, or for any violation of neutrality. I cannot, therefore, consider the injury received by the Mary, in any other light, than as a marine trespass.

The cases of Le Caux v. Eden, (Doug. 526) Lindo v. Rodney, (Doug. 591. note 1.) Smart v. Wolff, (3 Term Rep. 323.) and many other cases which might be cited, recognize the principle, that for seizing, stopping, and taking a ship on the high seas, not as prize, an action lies at the common law; that a thing being done on the high seas, does not exclude the jurisdiction of the common law; but that for taking as prize no action will lie at the common law, and that the nature of the question did not exclude the locality of the fact. A marine trespass, free from the circumstance, that the vessel was taken as prize, is cognizable, concurrently, in, the courts of common law, and in the Instance Court of the Admiralty. The latter Court has no more jurisdiction of the question of prize or no prize, than a Court of common law. It has been supposed, that the defendant’s conduct can only be inquired into in the Admiralty, as it may involve questions of state, the discussion and decision of which may compromit the peace of the nation. Those are considerations to which this Court cannot listen, if they have jurisdiction of the cause. We are not at liberty to assume or decline jurisdiction, upon speculative grounds, or for reasons of public policy.

It has been thrown out, that for aught we know, British cruisers, at the time this injury was committed, having a right to overhaul neutrals, to search for contraband goods, and to carry them in for adjudication, may, also,- have had instructions, in case of any attempt on the part of neuT trals to escape, to run them down ; and that therefore the trespass, in this case, may have been committed in the exercise of a belligerent right, and, consequently, a Court of common law has not jurisdiction. The facts show that the Mary had submitted, and was in the act of coming under the Atalantaos stern, when the injury took place. The pursuit then was over, and it cannot be tolerated, nor will the Court infer, that the running foul of the Mary was in obedience to any orders given by the*Commissioners of the Admiralty. I again say, that I perceive nothing in the case giving rise to the question of prize or'noprize — nothing involving the laws of nations, or the jvp belli. I perceive nothing but a maritime tort; and, until instructed to the contrary, of such torts, whether committed by a belligerent cruiser upon a neutral, under such circumstances, or by a merchant ship, I cannot but think we have jurisdiction. I am therefore of opinion, that the motion for a new trial ought to be denied.

Yates, J. and Woodworth, J. concurred.

Van Ness, J. and Platt, J.

were of opinion that the verdict ought to be set aside, and a new trial granted.

Motion denied.  