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![handle is hein.slavery/ssactsengr0494 and id is 1 raw text is: THE ZEPHERINA
two cases that have been cited; *1 and it will be more convenient to adopt his words
than to multiply distinctions on this point. In The Pitt, Lord Stowell says, after
many other observ-[315]-ations, There may be incidental matters, such as repairs
and other expenses, requiring the application of equitable principles which the Court
may not feel itself competent to administer : I may, therefore, lay it down as a rule
for the conduct of this Court, that it is only in simple cases which speak for them-
selves that it can act with effect ; but in those which, being complex, require a
long and minute investigation, it cannot proceed with safety.
Both those cases are much stronger than the present, and much clearer in' the
original title, being cases of vessels sold under distress abroad, and in which no doubt
existed as to the original title ; yet my predecessor declined to interfere. In a cause
of conditional assignment I have myself done the same.*2
The utmost that can be said of this title, under the most favourable view of the
evidence, is, that it was a security for a debt, or conditional assignment, or mortgage
of the vessel, not reduced to possession, though in absolute terms. I can have no
doubt on the point of jurisdiction, that this is not a case in which this Court would
have proceeded to disturb the possession. But it is said, although this Court might
not have entertained a suit of this kind, brought before it in its original jurisdiction,
it will act with greater latitude and liberality in judging of the acts of the inferior
Court, and will be desirous to decide the case on its merits rather than on a point of
form. The Court certainly would do so on mere form; but I cannot consider the
power of the Court to disturb [316] the possession to be mere form, but rather a
very substantial part of the question before me ; and a loose determination on my
part on this point could not fail to increase proceedings of the same kind in the
widely-extended Vice-Admiralty Courts of this country in distant parts of the world.
The mischief of encouraging such a practice would be much greater than any incon-
venience that might attend the exceeding of jurisdiction with which this Court might
be chargeable in an original case, which might be either sanctioned or corrected by
the superior Courts in a short time. But in cases arising in distant settlements
much time must elapse, and great inconvenience must be occasioned to the party,
before such an error can be set right by appeal.
For these reasons, I feel myself bound to decide this case distinctly on the ques-
tion of jurisdiction ; saying, at the same time, that if I were disposed to go further,
and decide on the merits, I do not see any conclusion to which I should be likely to
arrive, that would support the sentence. I can safely say that I could not decide
in favour of Mr. Cole's title, such as it appears on these proceedings ; and it would
require a stronger power of construction than this Court possesses, and the means of
obtaining much further information than I can derive from this evidence, to form a
more positive opinion on the bare title of property which is said to exist in Mr. Cole
under this bill of sale. I must, therefore, reverse the sentence, and pronounce for the
restitution of the vessel to the former possessor. And, as he has been dispossessed
of his vessel, which has been in the hands of Mr. Cole, as I am informed, under the
sentence [317] for two or three years, I should not do full justice if I did not pro-
nounce also for compensation, in the nature of demurrage, and refer the amount to
the registrar and merchants. I decree this not as vindictive damages, but as virtually
a part of the interest in dispute. I do not condemn the party in costs, as it is not
usual in reversing a sentence, unless under special circumstances. I am willing to
presume that everything has been done from proper motives ; but, as I think the
judgment of the Court below is founded on erroneous principles, or on incorrect
information, it is my duty to reverse it, and award to the party such relief as may
amount to an equitable compensation for the injury which he has sustained.
ZEPHERINA -(Lima). March 2, 1830.-In joint captures, only the actual force
present shares in the prize ; therefore when a tender of one ship was joint captor
with another ship, the prize was shared proportionably between the capturing
ship and the tender ; but the tender's share, under the Order in Council, 30th
of June 1827, is distributable among the whole of the ship's company.
*1 The Warrior, 2 Dods. 288; The Pitt, 1 Hagg. 242.
*2 The Fruit Preserver, supra, 181.
2 HAGG. 315.](ViewImageLocal?handle=hein.slavery/ssactsengr0494&div=1&collection=&method=preview&ext=.png&size=3)