Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1868-04-17
n.rirable ra..r., .Ae course Of adniraIly

lnht tnib cOuufuSuoh SN NlOe 'H'~
effect the true intention Of Congress
sufficiently appears on reference TO the
act of July IL, 1884, in which Il is pro-
yided expressly that proceedings for
confscation shall conform as nearly as
may be to proceedings in admiralty or
reyenue cases.
We think, therefore, that the circuit
court had jurisdiction Of the cause:
II remains TO be considered whether
the decree OF the court can be reviewed
here on appeal No appeal is expressly
provided by the act Of 1861. The Con-
stitution, however, gives TO this court
appellate jurisdiction in all cases oi
which the inferior courts Of the United
States have original jurisdiction, subject
TO such exceptions and regulations as
Congress shall make; and the act ooi
1902 provides generally for appeals
from decisions in admiralty. Some oil
the judges think it a reasonable construc--
ton of the act that il was not intended
to except DEGREES under II from the ap'
pellate jurisdiction Of this conrt but
that it was intended to apply to them
the general regulations Of admiralty pro,
ceedings in respect to appellate as well
as to original Jurisdiction while o ma
jority Of the court is of opinion that ap-
pellate jurisdiction may be taken OF the
cause, because the proceedings below,
though in a case of common law Jurisdlc
ton, were substantially according to the
course in admiralty; but only for the
purpose of reversing the decree OF the
circuit court as irregular, and directing
new trial
We proceed then to the questions
arising upon the merits. The case may
be briefly stated.
A square of ground in New Orleans,
with the buildings upon it, was leased on
the l7th Of September, 1861, by one
Leonce Burthe to William G. Cook and
Francis L. Cook, who, in October or No
vember, established on the premises a
manufactory of arms for the rebel govern.
ment, and continued the business until
the occupation Of the city by the national
forces in the spring of 1862.
In October, 1861, the Union Insurance
Company of New Orleans took mort
gage from Burthe upon three undivided
twenty.fifths of the property to secure
the payment of a note for thirty-fve hun
dred dollars due from him to the com
psny.
Subsequently suit was instituted upon
the mortgage and in due course decree
of sale was rendered, under which the in.
surance company became purchasers OF
the mortgaged premises for fourteen hun
dred dollars, and on the 26th Of Febru-. T.
airy, 1864, received the Sherifs deed OF
the property.
In April, 1864, the company obtained
a judgment for twenty-seven hundred
and thirty i've dollars, being the balance
due on the note of Burthe, and was about
to sell the residue of the property, when
further proceeding was arrested by a
military order.
1t appears further, from the evidence,
that three minors of the Burthe family
were legal owners of four thirty-sixths
Of the property on which the gun factory
was established
By the decree of the Circuit Court the
whole property was condemned as for
feited to the United States, except the
four thirty-sixths, called IN the decree
four twenty. ffths, of the minors,
An appeal was taken by the Union In.
surance Company and another claimant
who has abandoned the prosecution of
his appeal. No appeal was taken by
the United States from that part of the
decree which exempted the interests OF
the minors from condemnation.
There is no reasonable doubt thai. the
Cooks established their mandatory OF
arms on the ground leased by him to
them with the full knowledge and con-
sent of Leonce Burthe. 1t thus became
within the express terms of the act the
lawful subject of prize and capture from
the time of that establishment.
The evidence in respect to the rights OF
the insurance company is not so clear.
To the extent of the interest created by
the mortgage, the company may, doubt
less, be properly regarded as owner.
But there is no direct proof of consent to
the unlawful use and, indeed, no proof
at all, except the fact of taking the
mortgage, and it does not appear that
the Cooks had taken possession under
their lease before the execution OF the
mortgage.
We do not think this evidence of con-
sent sufficient to support forfeiture.
The counsel for the company very
properly abandoned 3 ny claim under the
judgment recovered for the balance due
on the mortgage note. The forfeiture
was incurred when the Cooks went into
actual use of the premises under the
lease, and the subsequent seizure for
condemnation divested all intermediate
liens.
The decree of the Circuit Court must
be reversed as irregular, and the cause
remanded for new trial in conformity
with this opinion. The property seized
having been real estate, the proceedings
on the new trial must be conformed in
respect to trial by jury, and the ex--
ceptions to evidence to the course OF
proceeding by information on the com
mon law side of the court in case of seiz-
ure upon lands"
.sThe Vengeance. 8 DALI, 2e7. The Sarah.
d. W. MIDDLETON,
Clerk Supreme Court United States.
tl2U S. St., 5s1. see. z.