The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1868-04-21

appellate 1ur1SQlctlOu VI ILLS Sou !, o"V 80 =
Vas intended to apply to them the genera
regulations of admiralty proceedings in respect
to appellate as well as to original jurisdiction
while majority of the court Is OF opinion tina,
appellate Jurisdiction may be taken of the
cause, because the proceedings below, though
in case of common law jurisdiction were sub
stantially according to the course in admiralty
| but only for the purpose Of reversing the de-
cree OF the Circuit Court as irregular, aae
directing q new trial.
We proceed then to the questions arising
upon The merits. The case may be brleh.
stated.
A square of ground in New Orleans, viii
tine buildings upon it, was leased on the It'll
Of September, 1861, by one Leonce Burthe t
William G. Cook end Francis L. Cook: who, II
| October or November, established on the prem
| ises manufactory of arms for the rebel gov
ernment, and continued the business until th(
occupation OF the city by the natlonal forces
| in the spring of 1862.
In October. 1861, the Union Insurance Com
panv of New Orle:ns took mortgage non
Burthe upon three undivided twenty-tfths o
the property to secure the payment OF note
! for thrty-fve hundred dollars due from hin
to the company. =,
subsequently, suit was instituted upon the
mortgage, and in due course decree OF sale
was rendered, under which the insurance com.
pany became purchasers of the mortgageo
premises for fourteen hundred dollars, and or
the 26th of February, 1864, received the sher
| iff's deed OF the property.
In April, 1864, the company obtained a Juds
menr for twenty-seven hundred and thlrty-hve
dollars, being the balance due on the note O
Burthe, and was about to sell the residue o.
| the property. when further proceeding was ar
rested By military order.
It appears further, from the evidence, ina,
three minors of the Burthe family were lega
owners of four thirty-sixths of theproperty on
which the gun factory was estaohsheo. ,
By the decree of the Circuit Court the
whole property was condemned as forfeited te
the United States, except the four thlrty-slxtns
called in the decree four twenty-hfths, OF the
minors.
An appeal was taken by the Union Insurance
Company and another claimant who has aban'
doned the prosecution OF his appeal. No ap
peal was taken by the United States from that
part of the decree which exempted tue inter
ests Of the minors from condemnation.
There is no reasonable doubt that the Cooks
established their mandatory OF arms on the
ground leased By him to them with the tul
knowledge and consent of Le1nce Burthe: II
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 &C clear. 10 the ex-
tent Of the interest created by the mortgage,
the company may, doubtless, be properly re,
garded 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 consent
sufficient to support a forfeiture.
The counsel for the company very properly
abandoned any claim under the judgment re-
covered for the balance due on the mort gage
note. The forfeiture was incurred when the
Cooks went into actual use Of the premises
under the lease, and the subsequent seizure
for condemnation Invested all intermediate
liens.
The decree of the Circuit Court must be re.
versed 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 con-
formed in respect to trial by jury, and the e5-
ceptions to evidence to the course Of proceed
ing by information on the commonlaw side OF
the court in cases of seizure upon land.
D. ". MIDDLETON,
Clerk Supreme Court United States.
1.-The Sarah, Wheat, Sol.
*.The Vengeance, Dali, 297. The st-2h,
Wheat, S91.