The Mary

16 F. Cas. 935, 1 Mason C.C. 365

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: May 15, 1818
• Status: Published

Opinion

STORY, Circuit Justice.

Whatever might have been my opinion upon the special facts stated in the answer, as to which I affirm and deny nothing, I am very clear, that the proceedings of Messrs. Bryant and Sturgis, in the acts of court, in which they assert themselves to be owners, and claim a delivery of the prize proceeds on bail in that character, are conclusive upon them, and they cannot now be permitted to deny, that they are owners at least to the extent of being responsible for the damages in this case. This case is much stronger than that of The Nostra Signora de los Dolores, 1 Dod. 290, where Sir William Scott held a person liable, as owner, for damages, although his name was not in the ship’s papers. There the party had only asserted himself owner by acts in pais; here the respondents assert it by acts of record, and must be estopped by such acts¡ The prize proceeds were delivered to them on bail, in virtue of their character as owners. How can the court now consistently permit them to shake off the character they have voluntarily assumed? There must then be a decree against them for payment of the damages; but we will do all we can to relieve them, by calling, with the consent of the plaintiffs, in the first instance, upon the original owner and his sureties, and suspend process to compel payment, until we see if that proceeding be effectual.

The money was afterwards paid by the sureties of the original owner.