WAITE, Circuit Justice.
These are two appeals, taken at different stages of the same [1050]*1050cause, to avoid the embarrassment of a mistake as to the proper decree to be appealed from. They are docketed as separate cases, but come up on the same pleadings and proofs. The only difference is, that one is taken from one decree, and the other from another. Motions to dismiss have been made in each case, and, before proceeding to consider the merits, it is necessary to decide which appeal is regular. That depends upon which of the decrees appealed from was the final decree, as to these appellants.
The appellants are garnishees in admiralty, under process of foreign attachment, in a suit in personam against a defendant not found, and who has never appeared. The libellants claim that the appellants have in their hands a fund, known as the proceeds of the steamer Wren, which they hold in trust for the defendant, Laird, and which should be subjected to the payment of the demand in the action, while the appellants say, they hold the fund for Prioleau, to whom it belongs and to whom alone they are accountable.
This issue, thus raised between these parties, was tried below before any decree was rendered against Laird, and, on the 26th of April, the court found and adjudged that the fund belonged to Laird, and amounted to $31,441.62. On the same day a further order was entered, directing the appellants to pay the fund into court, or give stipulation, with sufficient security, to abide the further order of the court in relation thereto. This stipulation they gave May 5th, and May 9th they appealed. This appeal is docketed as the first of the two cases here. Afterwards, September 19th, 1873, a decree was entered in favor of the libellants and against Laird, in the principal action, for $143,298.30, and granting execution thereon against the fund in the hands of the garnishees. From this decree the second appeal was taken, which is docketed as the second case.
The proceeding by foreign attachment is auxiliary to the principal action, and, if that action fails, nothing is gained by the attachment. The decision that the fund in the hands of the garnishees belonged to Laird was interlocutory only. It settled the title to the fund for the purposes of the suit, but did not adjudge that it be paid to the libel-lants. If, in the further progress of the cause, they had failed to maintain their claim against Laird, the decision would have been of no avail. The garnishees did not become finally bound to apply the fund they held to the payment of the demand sued upon, until the order to that effect was entered, September 19th. The order of April 26th left the final disposition of the fund open. The actual appropriation was not made until September 19th. The last was, therefore, the final judgment, and from that alone the appeal lies. It follows that the appeal of May 9th must be dismissed at the costs of the garnishees, appellants, and the cause retained for hearing only upon the appeal of October 3d.
Upon the merits, the principal question is as to the effect of the final decree in the prize cause, the libellants contending that it settled the title of Laird to the fund and concludes Prioleau. There can be no doubt that a judgment in rem, by a court of competent jurisdiction, binds all the world. It is, also, true, that such a judgment is conclusive as to all the essential facts upon which it rests.
Here, the cause was one of prize, and the ultimate fact to be determined was that of prize or no prize. The decision was, no-prize. To that extent, confessedly, all the world is bound.
In prize causes, the captors bring the captured property into court, and ask for a sentence of condemnation, but, before this can be had, they must satisfy the court that their-capture is lawful prize. Mere capture is not enough. Capture, to justify condemnation, must be lawful, and of this the court must be judicially informed. To this end, the-captors are required to produce all documents and writings found on board a captured vessel, and the depositions of her master, or some of her principal officers or crew,, taken in preparatorio. Upon the information thus obtained, the case is heard in the-first instance, and, if the proof is such as to-show that the capture could not have been lawful, there must be an acquittal, whether there be a claimant on the record or not. The right to condemnation may be resisted-by a party in interest, without the interposition of a formal claim. The rule upon-this subject is thus stated by the late Judge Betts, of this district: “When no proofs are expected to be offered by a claimant, beyond what are procured on the examination in preparatory, there would be no utility in his coming in with a claim in form, inasmuch as his advocate may be heard upon the captor’s proof, and a condemnation as prize is-never made in the first instance upon a mere default in not claiming, without at least strong presumptive evidence that it is enemy’s property. The court must be informed-by the proofs that it is a case of prize.” Betts’ Adm. 76.
A proceeding in a prize court is something more than a call upon those opposed to condemnation to come in and show cause against it. It is a suit by the captors to condemn, in which they are required, in the first instance, to make .out their case by proof. That proof, at the outset, consists, as has been seen, of the documents and writings found on board and the depositions taken in preparatorio. If this leaves a doubt as to the lawfulness of the prize, further proof may be ordered. Such an order is not a matter of strict right, but always rests upon the sound discretion of the court. The reason is, that a ship’s papers ought to show her true character, and her officers and crew ought to be able to give such further in-. [1051]*1051formation as may be required in order to enable the court .to act understandingly upon the question to be decided, to wit, that of prize or no prize. The burden of overcoming the effect of the proof which is thus produced in the first instance, is thrown upon the claimant. This is the meaning of the rule which throws the burden of proof upon a claimant. The preliminary proof, which the law requires the captors to bring with them, is a part of their case, and, if sufficient, must condemn, unless overcome. For this purpose, further proof may be required, but, until one opposed to condemnation presents his formal claim in the suit, he cannot be heard to ask that an order to that effect be made. The master of a captured vessel may put in the claim, but it must be for his owner, and, in practice, he is required to state, upon information and belief, who his owner is. If, upon an examination of the-captor’s preliminary proofs, it appears that there should be an acquittal, and no claimant has filed a claim, the court will, in some appropriate manner, ascertain and determine to whom a delivery of the property shall be made.
In this case, the captors brought the captured vessel into court and caused her to be libelled as prize of war. They also produced the documents and writings found on board, and the depositions of the master, purser, and first and third mates, taken in prepara-torio. This being done, the master appeared, and, as bailee of the vessel, claimed “for the owner,” stating that “Laird, a lawful British subject, residing in England, is the true and bona fide owner of said steamer, and that no other person is the owner thereof, as appears by the register of said steamer, now in the possession of the court, and as he is informed and believes.” The cause was thus made ready for hearing, but, upon examination of what was on file, an order for further proof was taken. No witnesses were examined, except such as were on board the Wren at the time of the capture, and the only additional proof offered or permitted on the part of the captors related entirely to the names of the persons who took part in the seizure of the vessel, or who had knowledge of the undertaking before the commencement of its execution. The testimony being all in, the cause was again heard, July 3d, and the court, finding that the vessel “was the property of the enemies of the United States.” announced its judgment of condemnation, July 8th, only twenty-six days after the vessel left Havana, twenty-four after she was brought into Key West, and twenty-two after the filing of the libel. Under such circumstances, it would seem to be clear, that the issue tried must have related only to the enemy character of the vessel, and not to its particular ownership. The legal effect of the claim put in by the master, was for the owner, believed to be Laird, whose name appeared in the certificate of registry found on board. It was, however, nowhere positively asserted that he was the real owner, and the certificate of registry to which the reference was made, and which was then in the possession of the court, bore upon its face the express declaration that it was not a document of title, and did not necessarily contain notices of all changes of ownership. It bore date December 24th, 1864, nearly six months before the capture, and there had been abundance of time for many regular and lawful changes of ownership, without an actual necessity for a new certificate, as the vessel had never returned to her home port after sailing upon her first voyage, and a new certificate could not be granted without a surrender of the old one. Merchants’ Shipping Act of 1854 (17 & 18 Viet c. 104, § 88). Prudence, undoubtedly, requires, that, when a master claims for the owner, he should state his belief as to who the owner was, but it would be dangerous to hold, in this class of cases, that a decree of acquittal, after such a statement based upon the evidence contained in the ship’s papers, would cut off a title lawfully acquired after the vessel had left her port of registry, and while she was absent on a voyage.
The office of a claim is to bring the claimant into the cause, so that he may become an actor. Before a claim is filed, all a contestant’s advocate can do is to present the case upon the captor’s proofs, but afterwards, he may, by leave of the court, add affirmative evidence of his own. When the master presents the claim, he acts, in contemplation of law, for whom it may concern, and is required to name his supposed owner, not for the purpose of maintaining the particular owner’s title against all the world, but to satisfy the court that he is acting in good faith, and that he is entitled to resist the captor’s title by further proof. When, after an acquittal, the court directs that the property shall be delivered to the claimant, it is not necessarily because he has been adjudged to be the owner, but because, upon the proofs which have been submitted, he appears to be such. If, because of his apparent ownership, he gets possession of that which actually belongs to another, he does so as the representative of the true owner and must account accordingly. If, after an acquittal, a controversy arises between two conflicting claimants as to their title, and they present their respective claims to the court for adjudication, in order that it may be definitively settled who has the better right, a judgment would bind them, but not necessarily all the world. The particular litigants are concluded, because they have voluntarily submitted their rights for adjudication in the cause. As they were not compelled to come in to litigate between themselves, they would not have been bound but for their submission. So, as all the world has only been called upon to appear, if they will, and contest the sentence of condemnation, the sentence of [1052]*1052acquittal leaves all interested in the property free to resort to such appropriate remedies as they choose, for the settlement of their conflicting individual rights.
It seems to me dear, that, if there had been no claim in this case, and, after a sentence of acquittal, the court had ordered the vessel delivered to Laird, as the registered owner, such an order would not have transferred the title back from Prioleau to Laird. As the claim in this case was, in effect, nothing more than for him as registered owner, it is difficult to see how it adds anything to the strength of his position as against the true owner.
Prize proceedings are not at all suited to the adjudication of disputed titles to the captured property. They are essentially war measures, and necessarily summary. To a large extent, the courts, like the captors, must rely upon the evidence furnished by the vessel herself, that is to say, upon appearances. Under ordinary circumstances, a vessel ought to be able to protect herself from condemnation, if innocent, by such testimony as she can obtain from her papers and her officers and crew. The laws of all maritime nations make ample provision for •documentary evidence of a vessel’s true character, and the principal officers are presumed to have always at hand the means of protection against unlawful capture. Hence, proceedings in prize are always hurried forward with all convenient dispatch. This is important both to captors and owners; but especially as to owners, if they are innocent, in order that their voyage may not be unnecessarily interrupted. For this reason, all collateral questions are, as far as possible, kept out of the way, and the enquiry confined to the lawfulness of the capture. Hence it is. that in the article in the American Encyclopedia (volume 10, p. 364), so much relied upon by the counsel for the libel-lants, in their argument, it is said: “If he <the claimant) has but a lien, or is a mere 'insurer, or a mortgagee not in possession, he cannot maintain his claim, for reasons which are found in the incompetency of such a court (prize) to investigate such claims.” ■Certainly, if it had been supposed that a decree in the cause was to settle anything else than the one question of prize or no prize, this would not have been said. If an ordinary sentence of acquittal was to have the effect of determining all conflicting claims between individual proprietors, the court ought to be competent to investigate and determine such questions. But it is practically incompetent, because the summary manner in which it necessarily acts is entirely unsuited to such enquiries. The master of a vessel is not presumed to have accurate information upon such subjects, and it is not usual for him to keep on board the evidence required in the trial of such causes. It has never been supposed, that, when n mortgagee appears as claimant, in a suit in admiralty brought to enforce a maritime lien, if he defends successfully against the lien and defeats the action, a decree dismissing the libel would settle his rights as against the mortgagor. So, too, one who. by asserting ownership, defeats a condemnation as prize, does not thereby establish his title as against a contesting owner.
I am, therefore, clearly of the opinion, that the ordinary sentence of acquittal in a prize suit, even if accompanied by an order for the delivery of the property to the person appearing as claimant upon the record, does not necessarily divest others of any title they may have to the subject-matter of the capture. It only remains to consider whether there is anything in this case to take it out of this general rule. Certainly, no issue as to Prioleau’s ownership was directly presented upon the record. The case was submitted substantially upon the preliminary proofs, and the district court only decided that the property was enemies’ property, and, therefore, lawful prize. The decree of the supreme court simply reversed that of the district court, and ordered restoration of the property. Upon its face, it only decided that the vessel was not enemy property. On the part of the United States, it was argued, that the register was only “a cover of the rebel title,” and, on the part of the captors, that “there was not a particle of evidence to show that the steamer was ever enemies’ property.” The court, while conceding that it was not “unnatural or unreasonable to suspect that the so called Confederate States, or their agents, had some connection, if not interest in.her,” concluded, that there was “no foundation of legal proof of the ownership of the vessel in the Confederate States, on which these circumstances can rest, or be attached, as auxiliary considerations, to influence the judgment of a court.” In this there is nothing to indicate a definitive decision as between Laird and Prioleau, that Laird was the owner and Prioleau not. All it amounts to is, that the captors had not succeeded in showing that Laird had parted with his title to “the enemies of the United States.” What the court might have decided, if the bill of sale to Prioleau had been in evidence, is not now the question, but what it did decide upon the evidence actually presented.
When the mandate went down from the supreme court, all the district court had to do was to enter the decree which was ordered and deliver the fund in the registry to the claimant. The effect of the decision upon the appeal was, that, as Laird was the apparent owner, he should have the possession. So, too, when the district court acted upon the mandate, it did not adjudicate upon the actual title of Laird to the fund, but simply ordered that the fund be given up to him, as the person apparently entitled to take it out of court. When Foster & Thomson received the money upon the authority [1053]*1053of Laird, they took it to hold, as Laird would have held it. if it had been paid to him instead of them. As the apparent registered owner of the vessel, he, under the circumstances of the case, represented the real owner, and would be accountable for all that came into his hands in his representative character. If Laird had himself drawn the fund, and placed it in the hands of Foster & Thomson for safe keeping, or if he had placed it upon special deposit in a bank, or if he actually held it in his own possession separate from his other property, it could not have been subjected by these li-bellants to the payment of their demand against him, because he held it, not in his own right as owner, but in trust for another. So long as Foster & Thomson hold the money, it is kept separate from the other property of Laird, and preserves its trust character.
Clearly, if this were all, the fund could not be subjected in this action. Prioleau, upon the evidence submitted in this case, was the actual owner of the vessel when captured and when sold. The proceeds, therefore, which had taken the place of the vessel, in the progress of the suit, were his when paid out of the registry of the court, and the parties to whom the payment was made took them in trust for him. They have not only been kept as a distinct and separate fund, but are proceeded against in this action as such.
But it is further insisted, that, as Prioleau employed counsel and prosecuted the appeal in the supreme court, with Laird upon the record as claimant, he stands in the position of an enemy who has put forward a neutral to claim his captured property as owner, and cannot now be heard to say that the neutral was not the owner in fact. Such I do not understand to be the effect of what was done. So far as anything appears Tip on the evidence in this case, Laird was in truth the owner of the vessel when she was registered, and when she sailed from Liverpool. She may have been built upon the order of Prio-leau, but there is nothing whatever to show that she actually belonged to him at any time previous to the execution of the bill of sale. She was, then, when she sailed, properly registered in Laird’s name, and Prioleau cannot be said to have put forward Laird as owner, because she went to sea with a certificate of Laird’s registry on board. More than six weeks before her capture, Prioleau had entered his bill of sale in the custom house at her port of registry, and obtained a new registry in his own name. When she was captured, she was returning for the first time to her port of registry. There was nothing in the laws of Great Britain which made it necessary to give up the old certificate of registry and take out a new one before that time. When the vessel was brought into court, and the preliminary proofs taken and filed, the master, in accordance with his duty, attempted, in the usual way, to protect the interests of her owners. Believing it to be important to secure the privilege of submitting further proof, and finding from the ship’s papers that Laird was the registered owner, he made the necessary formal claim for the owner, stating his belief that the registered owner still continued to be the true owner. By so doing he raised no new issue upon the pleadings. The court had still to be satisfied that the vessel was enemies’ property. A false claim, if discovered, would have been a strong circumstance in favor of the validity of the capture, but still there could not be a condemnation, unless the proof satisfied the court that not only Laird was not the owner but an enemy was.
As has been seen, a formal claim was not necessary to enable one having a substantial interest in the property, to argue against the sufficiency of the captors’ proof. A master may employ counsel to appear for a registered owner and oppose the condemnation, and he will, ordinarily, be heard upon the case as made by the libellants, without making himself an actual claimant. In this case, there is nothing to show that Prioleau knew of the pendency of the proceedings until after the master had secured an appeal. He simply did, after this, what the master might have done, without entering a claim, before. He argued, that, upon the proof as it stood, there was no case for condemnation.
The question here presented does not arise between Prioleau and the United States. If all the truth had been spread upon the record, a different result might have been reached, and the captors might have secured their prize. But that is not now the question. A sentence of acquittal has been pronounced, and an order made for the restoration of the property to the owner. If Prio-leau were now asking to have the delivery made to him instead of Laird, the court might with propriety refuse to interfere, and leave him to such remedies as he was entitled to after the money reached Laird’s hands, on the ground that, having waited until a decision had been reached at his instigation, it did not lie in his mouth to object to such a decree as the record required. As between him and Laird, however, there is no estoppel, and, if he is not estopped as against Laird, he is not as against the libel-lants. They acquired no new rights by the decree, and they have given Laird no new credit upon the faith of it. Their rights depend upon Laird's actual title, and not upon what Prioleau may have done to save the property. The case of De Metton v. De Mello, 12 Bast, 231, so much relied upon, is far from being like this. There, a neutral lent his name to an enemy to neutralize property, and the enemy put the neutral forward •as claimant, to prevent a condemnation. The whole tiling was planned as a deliberate and [1054]*1054palpable fraud, and the court said, that, after the fraud had been successful, it would not hear the enemy to recover its fruits from his guilty confederate. As the parties had combined to commit a fraud, and had been successful, the law would leave them in the transaction just where it found them. Here, there was no fraudulent combination, no putting forward for the purposes of deception, but a simple contention that the captors had not, by their own showing, made out their case. Prioleau stands just where he would if, without a claim, the district court, upon the proof, had acquitted the vessel, and delivered her to Laird. When he interfered in the cause, he was not bound to put in more testimony. He had the right to stand upon the case as made. In this respect he did not occupy a position different from other litigants. He was at liberty to rely upon the weakness of his adversary’s case as well as the strength of his own. The captors had no claim upon him for discovery, and he might keep silent if he chose. His promotion of the cause after the appeal placed him in no worse position than he would have been if the same decree had been rendered without his interference.
[NOTE. From this latter decree an appeal was taken by libellants to the supreme court, and the garnishees also took an appeal from the order dismissing their appeal from the first decree of the district court. Both decrees were affirmed (107 IT. S. 09, 2 Sup. Ct. 107), the court saying, through Mr. Justice Gray, that it was fully satisfied, both upon principle and authority, of the correctness of the decree upon the merits; that a decree of acquittal in a prize court “does not establish the title of any particular person, unless conflicting claims are presented to the court, and passed upon;” that, “even when conflicting claims of title are put in, the prize court will not ordinarily determine between them, unless one of the claimants is a citizen of its own country.” The court further said: “The libellants, in this suit against Laird personally, and against Foster & Thomson as his garnishees, have the burden of proving that the fund in the hands of the garnishees belongs to Laird. There is nothing in the acts of Prio-leau, or of the garnishees as his attorneys, which estops the garnishees to deny that fact, and to put the libellants to proof of it. He had no knowledge of the prize proceedings until after the decree of condemnation. Having a title to the vessel under the bill of sale from Laird, he prosecuted the appeal from that decree in Laird’s name, and by Laird’s authority. Whatever effect Prioleau’s omission to disclose his own interest might have had, if discovered upon the issue in the prize cause, or might have, by way of estoppel, if the present suit were brought by the United States, he has done nothing which Laird or Laird’s creditors have been misled by, or have acted upon. The title in the vessel, as between Laird and Prioleau, was in Prioleau. The garnishees, being attorneys both of Laird and Prioleau. received the proceeds in the name of Laird, but for Prioleau. There being no estoppel, either of record or in pais, the libellants fail to prove that the fund belongs to Laird, and cannot, therefore, maintain their attachment.”]
Neither do I think that the rights of the parties have been changed by what was done by Poster & Thomson to get possession of the fund. For all the purposes of this suit, they are to be treated as the representatives of Laud, in obtaining the money. If Laird was not the actual owner of the fund in his own right before it was paid to them, he was not after. The change of possession did not change the ownership. The title of Prioleau reaches behind that transaction, and behind any proceeding of these libel-lants, here or elsewhere, to reach the fund as Laird’s. Laird would have taken the money out of court as trustee for Prioleau if it had been paid into his own hands, and Foster & Thomson, in their character as his agents, hold it clothed with the same obligation.
This disposes of the whole case. The money in the hands of Foster & Thomson was never the property of Laird, but always of Prioleau. Consequently, the judgment of the district court declaring it to be the property of Laird, and subjecting it to the decree against him, was wrong.
Many other important and interesting questions were presented upon the argument, which, in the view I have taken of the case, need not now be considered. I have, however, thought it proper to find all the facts upon which these questions rest, in order that, if there should be an appeal, the whole case may go up. Without passing upon the validity of the defence set up in the amended answer of the appellants, which the late lamented judge of the circuit allowed to be filed provisionally, I have considered it as part of the case, and found the facts upon its allegations.
The testimony in the prize cause, and which is found in that record, cannot be considered here to prove the facts put in issue by the pleadings in this case, but it may be referred to for the purpose of ascertaining what was actually decided there, if the record leaves that question otherwise in doubt. The same may be said of the briefs of counsel and the opinion of the court upon the appeal. According to my view of the matter, they are unimportant, but, to present the case in full to the reviewing court, I have found the facts they establish, if admissible, thus putting the question of their relevancy upon the record.
Let a decree be prepared to the effect, that the fund, known as the proceeds of the steamer Wren, in the hands of Foster & Thomson, when served with process in this action, was not the property of John Laird, Jr., the defendant in the principal suit, and that it cannqt be subjected to the payment of the decree against him. All orders of the district court inconsistent with this finding are reversed and set aside. As the garnishees only have appealed, no order can be made in respect to the decree against Laird. The costs of the court upon this appeal, and of the district court, so far as they relate to the proceedings under the process of garnishment, are to be paid by the libel-lants.