United States vs. Bachelder.

Humphreys for the United States. The indictment contains every material allegation required by the statute. It is true, that the exact words of the statute are not used, but words of the same meaning are; and it is sufficient to set forth the substance, without adhering to the technical wording of the statute. The word "violently," is equivalent to "forcibly."

By the Court. The objections moved in arrest of judgment cannot prevail. It is not in general necessary, in an indictment for a statutable offence, to follow the exact wording of the statute. It is sufficient, if the offence be set forth with substantial accuracy and certainty to a reasonable intendment. The cases cited from the common law, where a different rule is supposed to prevail, do not apply. In those cases the very technical words used are those only, which constitute the specific offence. The law allows of no substitute in the indictment, because no other words are exactly descriptive of the offence.

It is not necessary, in an indictment for the obstruction of publick officers, to set forth the particular exercise of office, in which they were engaged at the time, or the particular act and circumstances of obstruction. These are properly matters of evidence; and so in fact are the best precedents. And this is a sufficient answer to the objection of a want of specific allegations as to any illegal importation, or just suspicion thereof. Admitting that the special statement as to these facts, in the indictment, were not sufficient; still the indictment contains a direct allegation of the substance of the offence, and the mere introduction of surplusage does not vitiate.

As to the objection, that the offence is not alleged in the words of the statute, it is certainly to be regretted, that an

3 Crown Circuit Comp. 161, 166, 176, 177.

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error, so easily avoided, should have crept in. The words of the act are "if any person shall forcibly resist, prevent or impede, any officers of the customs, &c. in the execution of their duty," &c. The averment in the indictment is, that the defendant "did with force and arms violently and unlawfully resist, prevent and impede," &c. Now, even supposing that "violently and unlawfully" are not equivalent with "forcibly," still the objection must be overruled, for "forcibly" doing an act is merely doing an act with force; and therefore the offence is substantially stated. Judgment must therefore be entered on the indictment.

Judgment against the defendant.

THE ST. LAWRENCE AND CARGO.

A Court of prize will take cognizance, not only of all questions of prize, but of every incident thereto, until a final adjustment of all claims arising from the capture. It will, therefore, entertain a supplemental suit for the distribution of prize proceeds.

Where the proceeds have been paid to prize agents, and the cause is no longer pend.

ing, the proper jurisdiction is the District Court. Where the proceeds remain in the Circuit Court, application may be originally made there, to compel distribution.

The prize act of 27th Jan. 1813, chap. 155, authorizing the Marshal to make distribution, does not narrow this jurisdiction. He still acts subject to the control of the Prize Court.

That act does not apply to sales made under interlocutory decrees, but only to sales after final condemnation.

Of the appointment, duties and authority of prize agents.

Prize agents have a lien on the prize proceeds for their disbursements and commis

sions. And this applies to prize agents de facto, though irregularly appointed. In the absence of all other regular prize agents, the owners of the ship and their agents are entitled to the trust, management and control of the captured property for the benefit of all parties.

Prize agents have an authority coupled with an interest, and cannot be devested of their authority, so as to take away their title to claim from the proceeds their

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disbursements and commissions. But when these are paid, the officers and crew have a right to take their shares directly at the hands of the Court.

A commander of a privateer, who is authorized to award certain reserved shares among the most deserving in the cruise, cannot award a share to himself. He is a trustee for others, and not for himself.

THE decree of this court, condemning the ship St. Lawrence and cargo as prize to the captors, having, with the exception of two suspended claims,' been affirmed by the Supreme Court, and the cause having been remanded for further and final proceedings, an application by way of petition was made in behalf of the captain and some of the officers and crew of the capturing ship (the America) to have their respective shares of the prize proceeds, when ascertained, paid into the hands of their particular agents, and not into the hands of the supposed general agents of the ship.

This application was resisted by Pitman, of counsel on the part of the ship owners, and the supposed general agents Messrs. Prince and Deland, who asserted their right to a delivery of the whole prize proceeds into their hands, to secure their equitable liens for advances, expenses, disbursements and commissions incurred or made during the cruise.

On the other hand, J. T. Austin, for the petitioners, contended first, that Messrs. Prince and Deland were never legally appointed general agents; secondly, if legally appointed, that their authority had expired; thirdly, if the authority were permanent in its form, that it had been legally revoked, and lastly, that at all events they were entitled to a direct payment of their respective shares, after deducting all the legal charges of the agency.

1 These claims were also rejected at the next term of the Supreme Court. 9 Cranch, 120.

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STORY, J. There can be no doubt of the general jurisdiction of the admiralty to take cognizance not merely of the question of prize, but of every incident thereto until a final adjustment of all claims arising from the capture. This is a part of prize jurisdiction, which is settled by solemn authority, and indeed seems essential for the purposes of complete justice in all proceedings in rem. Independent therefore of any provision by statute, the right of regulating conflicting claims, of ascertaining the title, character and number, of the captors, and of awarding a final distribution of prize property, attaches as an ordinary incident to the possession of the principal cause. And the courts of the United States, in the exercise of admiralty and maritime jurisdiction, possess the right in as ample a manner as the prize courts of Great Britain.

It is true, that the Act of Congress of the 27th of January, 1813, chap. 155, has authorized the Marshal to make distribution of prize proceeds, which come into his hands upon sales made after final condemnation. But this provision was not intended to narrow the jurisdiction of the proper prize court, but merely to avoid the delays incident to sales made during a vacation of the court, and in plain cases to facilitate to the parties the acquisition of their respective shares. Even in these cases, however, the distribution is still subject to the control and regulation of the prize court, whose duty it is to ascertain the proper parties entitled to share, and in case of doubt or difficulty to adjust the con tested claims.

In the case before the court, the property was sold under an interlocutory order before final condemnation, and the proceeds brought into the registry to abide the final decision of the appellate court. The provisions of the Act of

2 See Smart vs. Wolff, 3 T. R. 323, Home vs. Camden, 1 H. Bl. 476,-2, H. Bl. 533, &c.

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Congress do not therefore apply; the distribution must be made by the court itself in the exercise of its ordinary functions. It would seem to follow, that in order to make such distribution, the court must first adjust all the claims, which attach as equitable demands upon the prize proceeds, and perform in some sort that duty, which is ordinarily performed by the Marshal.

Although the general jurisdiction for all these purposes seems incontestable; yet, at the argument, a suggestion was thrown out by the court, how far it ought to entertain cognizance as a mere appellate court, over some of the collateral questions which the parties had brought before it, some of these questions seeming more fit to be discussed before a court of original prize jurisdiction. Upon mature reflection and examination of authorities, I am entirely satisfied, that all questions relative to prize property, and of course all incidental claims upon it by reason of the capture, properly belong to the court having possession of the property either actually, or in contemplation of law through prize agents, or having a right to call for the property in order to execute its decrees, and enforce the rights of the parties connected with its proceedings; and that it is perfectly immaterial whether the court possess the cause as of original jurisdiction or by appeal. Not to mention authorities in the admiralty, the reasoning in Smart vs. Wolff, 3 T. R. 323, Home vs. Camden, 1 H. B. 476, 2 H. B. 533, 4 T. R. 382, and Willis vs. the Commissioners of Prize Appeals, 5 East 22, is in my judgment decisive.

Having disposed of this preliminary ground, I come to the consideration of the questions, which have been made by the parties at the bar.

The 11th article of the shipping articles of the privateer provides, "that the captain and officers of said ship shall appoint an agent or agents for said vessel's company for and