THE only exhibits on the part of the libellants were, a certified copy of the sentence of the High Court of Errors and Appeals, in the case of Silas Talbot against the owners of the brigs Achilles, Patty and Hibernia ; a proof of the sums paid by the owners of the Hibernia in consequence of that decree ; and the orders signed by Angus to O’Neal, the prize master put on board the brig Betsey, after she had been taken from Silas Talbot — In these words :
“ORDERS for captn. William M’Neil to take charge of the brigantine Betsey (prize to the Patty, Achilles and Hibernia) and take her into Delaware, Chesipeak, Boston or Eggharbour or Boston. If into Delaware, to apply to Mr. John Donalson, mercht. in Philadelphia. If into Baltimore, to Mr. William Neil, mercht. If into [120]*120Boston, to Mr. William Erikin, mercht. but to get her if possible into Delaware, Eggharbour or Chesipeak, for fear of the sloop Argo’s falling in with you if you go to New England; but wherever you go, suffer no bulk to be broke until you write to and receive an answer from Mr. Donaldson. If you go to Philadelphia, stop and cast anchor at Christeen creek mouth, and to fire 3 guns. I beg of Mr. M’Neil to stand to the swd. this night, and strive hard for Pha. If you get to Pha. apply likewise to Mr. Saml. & Thos. Morris in Co. the owners of the Achilles, and Dean, Purvines and Harbourfon for the Hibernia, who is all equally concerned in the prize,
At sea, on board the brigtin.
Patty, Sept. 7th, 1779.
JOHN PROLE,
GEORGE THOMSON,
JOHN ANGUS.”
The testimony in behalf of Angus, the respondent, was as follows—
The failing orders of the owners of the Hibernia to captain Angus, in which the only passage, that had any reference to the present suit, was in these words:
-“ We advise you to keep company with the “ armed vessels bound to the eastward, as far as you think “ it prudent. And should they agree to cruise two or “ three weeks on our coast, you have our approbation in joining with them.”-
[121]*121Deposition of George Eldredge.
BEFORE me, the subscriber, judge of the court of admiralty for the state of Pennsylvania, this 25th day of April, 1785, came George Eldredge, who, being duly sworn, did declare and say — That he was a mariner on board the brig Hibernia, captain John Angus commander, at the time that captains Prole and Thomson took the brig Betsey, bound from Montserrat to New York — That when the said brig Betsey was boarded by captains Prole and Thomson, the Hibernia was astern about five or fix miles. When the Hibernia came up, captain Angus hailed the brig, and asked what she was; captain Prole answered, that she was a good prize, bound from Montserrat to New York. Captain Angus made answer, that if the brig was prize, the sloop must be one also — That captain Prole was on board the Betsey while this conversation passed. — Captain Angus asked, why one of their sail sailing brigs did not give chase to the sloop — They made answer, that they would not leave the prize till she was manned, and requested captain Angus to give chase.— That captain Angus gave orders accordingly to make sail and give chase, which was done ; and after chasing two or three leagues, the Hibernia did not come up with the chase. Captain Angus then gave orders to leave off the chase — The two brigs commanded by Prole and Thomson laying too by the prize, did not bear down on capt. Angus, so that he was obliged to turn to windward up to captains Prole and Thomson — It was then near night— Capt. Prole sent his boat for two men to put on board the prize, which capt. Angus sent. And this deponent fur[122]*122ther faith, No prisoners were received on board the Hibernia nor plunder of any kind, and that capt. Angus never had a further opportunity to speak to the brigs, they out-failed him so much. That this deponent was third mate and pilot on board the said brig Hibernia, at the time of taking the said brig Betsey.
That deponent knows nothing of capt. Angus signing orders to the prize master — That capt. Angus was not on board either of the other two brigs — That capt. Angus joined in the chase with the others before the brig Betsey was taken.
GEORGE ELDREDGE.
Sworn to, April the 25th, 1785,
before
Fran. Hopkinson.
Deposition of John Brice.
PeRSONALLY appeared John Brice, mariner, a witness produced on the part of the respondent in this cause, and being duly sworn, deposeth and faith — That he was on board the brigantine Hibernia at the time that capt. Prole and capt. Thomson took the brig Betsey from Montserrat bound to New York — At the time they boarded her the Hibernia was astern about five or fix miles— when we came up with the brig Betsey, capt. Angus hailed her and asked what she was, capt. Prole made answer, that she was a good prize from Montserrat bound to New York — Capt. Angus made answer, that if the brig was a prize the sloop must be one also, and asked capt. Prole why [123]*123one of their fast sailing brigs did not give chase to the sloop — Capt. Prole made answer that he would not leave the prize until she was manned, and requested of capt. Angus to give chase to the floop, which capt. Angus did, but, after chasing two or three leagues, found he could not come up with the sloop. Capt. Angus then gave orders to shorten fail and haul her wind to speak to the brigs, and in the evening we came up with them — the two brigs commanded by captains Prole and Thomson lying by the brig Betsey all the while. Capt. Prole sent his boat on board capt. Angus, and desired him to send two hands to go on board the brig Betsey — One of capt. Prole’s people came out of the boat and handed capt. Angus a paper, which he signed, and gave to the man again —Capt. Angus sent two men in the boat. — That capt. Angus had none of his boats out, and that he did not receive any prisoner or any plunder of any kind from the brig Betsey — That the brigs parted with her that night, and outsailed them so much, that they had it never in their power to speak to her again — And further deponent faith not.
The said deponent being cross examined, saith, That he was first mate on board the Hibernia at the time above mentioned — That he knows not the contents of the paper signed by capt. Angus — that capt. Angus sent two men on board the Betsey — that he does not know the name but of one of them, which was George — that they were both of the crew of the Hibernia — that he did not hear any directions given to them by capt. Angus — that he heard no further conversation between capt. Prole and capt. Angus, than what he has mentioned — that he was so busy aboard the Hibernia, that he does not remember whether the Betsey had any colours; that he look’d upon it to [124]
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THE only exhibits on the part of the libellants were, a certified copy of the sentence of the High Court of Errors and Appeals, in the case of Silas Talbot against the owners of the brigs Achilles, Patty and Hibernia ; a proof of the sums paid by the owners of the Hibernia in consequence of that decree ; and the orders signed by Angus to O’Neal, the prize master put on board the brig Betsey, after she had been taken from Silas Talbot — In these words :
“ORDERS for captn. William M’Neil to take charge of the brigantine Betsey (prize to the Patty, Achilles and Hibernia) and take her into Delaware, Chesipeak, Boston or Eggharbour or Boston. If into Delaware, to apply to Mr. John Donalson, mercht. in Philadelphia. If into Baltimore, to Mr. William Neil, mercht. If into [120]*120Boston, to Mr. William Erikin, mercht. but to get her if possible into Delaware, Eggharbour or Chesipeak, for fear of the sloop Argo’s falling in with you if you go to New England; but wherever you go, suffer no bulk to be broke until you write to and receive an answer from Mr. Donaldson. If you go to Philadelphia, stop and cast anchor at Christeen creek mouth, and to fire 3 guns. I beg of Mr. M’Neil to stand to the swd. this night, and strive hard for Pha. If you get to Pha. apply likewise to Mr. Saml. & Thos. Morris in Co. the owners of the Achilles, and Dean, Purvines and Harbourfon for the Hibernia, who is all equally concerned in the prize,
At sea, on board the brigtin.
Patty, Sept. 7th, 1779.
JOHN PROLE,
GEORGE THOMSON,
JOHN ANGUS.”
The testimony in behalf of Angus, the respondent, was as follows—
The failing orders of the owners of the Hibernia to captain Angus, in which the only passage, that had any reference to the present suit, was in these words:
-“ We advise you to keep company with the “ armed vessels bound to the eastward, as far as you think “ it prudent. And should they agree to cruise two or “ three weeks on our coast, you have our approbation in joining with them.”-
[121]*121Deposition of George Eldredge.
BEFORE me, the subscriber, judge of the court of admiralty for the state of Pennsylvania, this 25th day of April, 1785, came George Eldredge, who, being duly sworn, did declare and say — That he was a mariner on board the brig Hibernia, captain John Angus commander, at the time that captains Prole and Thomson took the brig Betsey, bound from Montserrat to New York — That when the said brig Betsey was boarded by captains Prole and Thomson, the Hibernia was astern about five or fix miles. When the Hibernia came up, captain Angus hailed the brig, and asked what she was; captain Prole answered, that she was a good prize, bound from Montserrat to New York. Captain Angus made answer, that if the brig was prize, the sloop must be one also — That captain Prole was on board the Betsey while this conversation passed. — Captain Angus asked, why one of their sail sailing brigs did not give chase to the sloop — They made answer, that they would not leave the prize till she was manned, and requested captain Angus to give chase.— That captain Angus gave orders accordingly to make sail and give chase, which was done ; and after chasing two or three leagues, the Hibernia did not come up with the chase. Captain Angus then gave orders to leave off the chase — The two brigs commanded by Prole and Thomson laying too by the prize, did not bear down on capt. Angus, so that he was obliged to turn to windward up to captains Prole and Thomson — It was then near night— Capt. Prole sent his boat for two men to put on board the prize, which capt. Angus sent. And this deponent fur[122]*122ther faith, No prisoners were received on board the Hibernia nor plunder of any kind, and that capt. Angus never had a further opportunity to speak to the brigs, they out-failed him so much. That this deponent was third mate and pilot on board the said brig Hibernia, at the time of taking the said brig Betsey.
That deponent knows nothing of capt. Angus signing orders to the prize master — That capt. Angus was not on board either of the other two brigs — That capt. Angus joined in the chase with the others before the brig Betsey was taken.
GEORGE ELDREDGE.
Sworn to, April the 25th, 1785,
before
Fran. Hopkinson.
Deposition of John Brice.
PeRSONALLY appeared John Brice, mariner, a witness produced on the part of the respondent in this cause, and being duly sworn, deposeth and faith — That he was on board the brigantine Hibernia at the time that capt. Prole and capt. Thomson took the brig Betsey from Montserrat bound to New York — At the time they boarded her the Hibernia was astern about five or fix miles— when we came up with the brig Betsey, capt. Angus hailed her and asked what she was, capt. Prole made answer, that she was a good prize from Montserrat bound to New York — Capt. Angus made answer, that if the brig was a prize the sloop must be one also, and asked capt. Prole why [123]*123one of their fast sailing brigs did not give chase to the sloop — Capt. Prole made answer that he would not leave the prize until she was manned, and requested of capt. Angus to give chase to the floop, which capt. Angus did, but, after chasing two or three leagues, found he could not come up with the sloop. Capt. Angus then gave orders to shorten fail and haul her wind to speak to the brigs, and in the evening we came up with them — the two brigs commanded by captains Prole and Thomson lying by the brig Betsey all the while. Capt. Prole sent his boat on board capt. Angus, and desired him to send two hands to go on board the brig Betsey — One of capt. Prole’s people came out of the boat and handed capt. Angus a paper, which he signed, and gave to the man again —Capt. Angus sent two men in the boat. — That capt. Angus had none of his boats out, and that he did not receive any prisoner or any plunder of any kind from the brig Betsey — That the brigs parted with her that night, and outsailed them so much, that they had it never in their power to speak to her again — And further deponent faith not.
The said deponent being cross examined, saith, That he was first mate on board the Hibernia at the time above mentioned — That he knows not the contents of the paper signed by capt. Angus — that capt. Angus sent two men on board the Betsey — that he does not know the name but of one of them, which was George — that they were both of the crew of the Hibernia — that he did not hear any directions given to them by capt. Angus — that he heard no further conversation between capt. Prole and capt. Angus, than what he has mentioned — that he was so busy aboard the Hibernia, that he does not remember whether the Betsey had any colours; that he look’d upon it to [124]*124be the captain’s business to attend to that — that he does not recollect whether the sloop had any colours — that all three of the vessels chased for about two or three hours before the Betsey was taken — that the Betsey was taken some time between ten and twelve o’clock in the forenoon — that he had not seen her taken the day before ; nor heard the firing the day before — that he is not sure whether it was the 2d, 3d, or 4th day after they left the Capes, that the Betsey was taken — that he cannot recollect whether they were becalmed about the mouth of the Cape — that he does not remember seeing any sail about the time of leaving the Cape, but saw several sail two or three days after— that he does not remember that any of the brigs did shape their course the night before taking the Betsey, so as to fall in with the Betsey or any other vessel — that capt. Angus sailed under American colours the whole time, both in chasing the sloop and the Betsey — that he is not sure, but thinks the other two brigs chased under American colours — that he did not fee or hear any of them fire as they came up with the Betsey — that he does not remember whereabouts the Betsey was taken — that he believes, and understood, that she was sent to Philadelphia, and that he does not know the reason why she was not sent to New London, or any port in Connecticut.
JOHN BRICE.
Sworn to, May 11th, 1785,
[125]*125Deposition of John M£Gill.
PERSONALLY appeared John M'Gill, mariner, a witness produced on the part of the respondent in this cause, and, being duly sworn, deposeth and saith-That he was on board the brig Hibernia at the time that captain Prole and captain Thomson took the brig Betsey -that the Hibernia was about five or fix miles astern at the time of the taking aforefaid-that the Betsey hove to till the Hibernia came up with her-that captain Prole was on board the Betsey when captain Angus came up with her-that captain Angus hailed her when he came up with her, and asked what she was, and captain Prole answered, that she was a fine prize-that captain Angus asked why one of their sail sailing brigs did not give chase to the sloop, for if one was a prize he was sure the other was-that captain Prole made answer, that he would not leave the brig till she was manned, and from that the Hibernia gave chase to the sloop for about an hour or two ; but not being able to come up with her, the Hibernia hauled her wind and came up with the other brigs -that the Hibernia was a dull sailer, and that while captain Angus gave chase to the sloop the other vessels remained with the prize-When the Hibernia came up with captain Prole, Prole sent a boat on board the Hibernia-he supposes that the boat came from captain Prole or captain Thomson; but is not sure which-that he does not remember whether the Hibernia had any colours up during the chase-that a man from the boat came on board the Hibernia, but he does not know whether he brought any paper from Prole to Angus or not-that no [126]*126prisoners or goods were brought on board the Hibernia —;—that he does not remember their speaking with, or coming up with the brigs afterwards-And further saith not.
The said de ponent being cross-examined, faith, the Hibernia was a duller sailer than the other two brigs, which could fail a great deal faster than her — that the sloop Argo, when captain Angus began to chase her, was about three leagues distant from the Betsey-that he knows not the reason why captain Angus was sent in chase of the Argo while the other two remained behind-he does not know how long they chased the Betsey before she was taken— that he cannot fay whether they had seen the Betsey the day before she was taken-that he cannot recollect whether it was two or three or four days after their leaving the Cape before the Betsey was taken-that he thinks that they saw a sail or two previous to the day of taking the Betsey, and that the Betfey might have been one of them, but does not know she was so-that be does not recollect seeing any colours on board the Betsey or the sloop during the chase-that the three brigs had all of them American colours up during the chase, and at the time of taking the Betsey, and that none of the brigs fired (that he either saw or heard) at the Betsey at all-that two of captain Angus’s hands were sent on board the Betsey.
After the deposition aforesaid, and cross-examination were read over to him, he says, that he remembers that the other two brigs were under American colours, but is not sure whether the Hibernia had any colours up ; and also, being further examined, saith-that he was most of the time busy below deck, and had not an opportunity of observing the distance captain Angus was from the brigs commanded by Prole and Thomson previous to the time
[127]*127when the Betsey was taken — ;—that he was a small boy on board the Hibernia at the time of taking the Betsey and one of her hands, and is now about twenty-three years old, and that he believes the Hibernia was to windward of captains Prole and Thomson during the chase, and that the three brigs chased before the wind, the Hibernia being astern of the other two brigs.
JOHN M'GILL.
Deposition of George Stoots.
GEORGE STOOTS, mariner, a witness produced in this cause on the part of the respondent, being duly sworn, deposeth and faith, That he entered on board the Hibernia with captain Angus-that after leaving the cape (but he cannot positively say whether it was two or three days) they saw the prize brig and a sloop, and captains Prole and Thomson-that before he went on board the prize, he heard she was from Montserrat for New York-That captain Angus hailed either Thomson or Prole, he cannot say which of them, and then he heard that she was from Montserrat-that captain Angus then gave chase to the sloop — that finding it impossible to come up with the sloop, he returned to the brigs-that it was almost night when they returned to the brigs, to the best of his knowledge-that either captain Thomson's or captain Prole’s boat came [128]*128on board captain Angus, and carried the deponent and another of captain Angus’s hands on board the prize — that captain Angus and the prize did not hail one another to his knowledge — that the prize when they came on board her was in the possession of one O’Neal or Neal, as prize master, who belonged either to captain Prole or Thomson -that he does not know of any prisoners or plunder brought on board captain Angus.
Being cross-examined, he saith — he does not know whether capt. Angus had any colours up, and that the prize had none that he remembers — that at such a time as that sailors are generally buzy on the gun-deck — that he knows nothing of any written orders to the prize-master — that he did not know what the sloop was — that he found on board the prize a boatswain or boatswain’s mate belonging to the sloop — that it was soon after he came on board that he (the boatswain or boatswain’s mate) told him he was such, and that he almost thinks that the said boatswain or boatswain’s mate told him the sloop was the Argo-And further the deponent saith not.
his
GEORGE + STOOTS, mark.
Sworn to, June 8th, 1785,
[129]*129Deposition of Aaron Ashbridge.
AARON ASHBRIDGE, a witness produced on the part of the respondent, being duly affirmed according to law, on his solemn affirmation doth declare and say— That he failed on board the brigantine Achilles, captain Thomson, in company with captains Prole and Angus— that after being out of the Cape two or three days, they discovered, early in the morning, a brig and a sloop — that capt. Prole being appointed as a commodore, gave orders to give chase, which was done — Prole and Thomson came up with the chase about eleven o’clock — he supposes that capt. Angus was at that time four or five miles astern— that the two brigs lay alongside of her, and sent their boat aboard — when capt. Angus came up he enquired what she was-— capt, Prole or capt. D-(he does not know which of them) answered that she was good prize, from Montserrat bound to New York — —capt. D. being a passenger on board, was sent aboard the brig — Capt. Angus told them if the brig was a good prize the sloop must be a good one also, and asked why one of the fast sailing brigs did not give chase — the reply they made was, they would not leave the brig till they saw her well manned, but desired him to give chase, which he did for about 2 or 3 leagues till he found he could not come up with the chase — he hauled his wind and beat up to the other brigs, but did not get up with them till the evening, just before dark, nor till Prole and Thomson had taken the hands out (he cannot say whether all or not) and put others in their place —Capt. Prole sent his boat aboard capt, Angus for a cou[130]*130ple of hands to man the brig, which the affirmant believes he sent — the prize brig stood to the southward bound to Philadelphia, and the other brigs to the eastward — that he never more heard of the prize.-Being asked whether they ever more heard of capt. Angus during the voyage, the affirmant answers he did not — that they steered one course, but the others soon run capt. Angus out of fight— that they saw him next morning from mast-head, but he does not recollect ever speaking to him again.
Being cross examined, he says, that he was an adventurer on board capt. Thomson, who promised him certain privileges if he would go — that they did not stipulate for any wages ; but that capt. Thomson having found him useful, gave him at Cadiz 6 Half Johannes — that the sloop and prize were in company when they gave chase — that he did not fee the colours of the prize till they were almost up with her ; when she carried English colours reversed — that they could not discover any colours the sloop had — at least the affirmant did not — that he supposes they were within about a league when the sloop left prize the -that it was fair weather that day, but it blew very fresh and there was a heavy sea going — that he does not know who made Prole commodore, but he believes they did it among themselves —that he remembers they held a consultation at Reedy island, but knows not what it was about — that he knows nothing of any orders given to the prize master, but that capt. Thomson said she was ordered to Philadelphia — that he thinks capt. Angus was about a league, or something less, perhaps about two miles behind the other brigs, when they began the chase — that he thinks they heard some guns the day before, but could not discover any thing, but directed their course towards the place they imagined it came from — that when he thought they heard a firing it was [131]*131stark calm, and capt. Angus was about two miles astern— And further the affirmant faith not.
Being further questioned, he says that the three brigs chased the prize under continental colours, and that the Hibernia also chased the sloop Argo under continental colours.
AARON ASHBRIDGE.
Affirmed June the 9th, 1785,