of one-eighth to the recaptors
(Marsden, _Law and Custom of the Sea_, II. 102, _cf._ also 168, 193),
and the statute 13 Geo. II. ch. 4, sect. 18, so provides, with
enlargement of salvage when the enemy's possession had lasted longer;
see doc. no. 145, note 61. But this present case was, or purported to
be, a case of a _second_ recapture. A note in 4 Chr. Robinson 217
shows three cases in 1778, 1780, and 1781, of British prizes
recaptured by the French, then captured again by the British; in one
case the House of Lords awarded the vessel to the first captor, in the
other two to the last. Justice Story, in one of his notes in 2
Wheaton, app., p. 46, says, "Where a hostile ship [_e.g._, Smith's
brigantine when first encountered by Norton, in Spanish hands] is
captured, and afterward is recaptured by the enemy, and is again
recaptured from the enemy, the original captors [_e.g._, Norton] are
not entitled to restitution on paying salvage, but the last captors
[_e.g._, Smith] are entitled to all the rights of prize, for, by the
first recapture, the whole right of the original captors is devested";
and he refers to the _Astrea_ (1 Wheaton 125), where Marshall in 1816
so decided, with as much emphasis as Sir Leoline Jenkins laid on an
opposite doctrine in 1672. In 1741 doctrine was in transition from the
earlier to the later view.]

_151. Appeal in Prize Case. December 8, 1741._[1]

[Footnote 1: Records of the Admiralty Court, Boston, "vol. V". From
1628 to 1708 appeals in prize cases from the sentences of
vice-admiralty courts in the colonies had been heard in England by the
High Court of Admiralty; since that date, they had, in accordance with
6 Anne ch. 37, sect. 8, been addressed to a body of persons specially
commissioned for the purpose, called the Lords Commissioners of Appeal
in Prize Causes. See the memorandum of Strahan and Strange (1735) in
F.T. Pratt, _Law of Contraband of War_, p. 295. A commission (1728)
for the trial of such appeals is printed in Marsden, _Law and Custom
of the Sea_, II. 267-270.]

1741, Decem'r the 8. John Overing, Esq'r,[2] Advocate for the
Propon'ts, Appeared In Open Court and Demanded an Appeal from the
aforegoing Decree, Which the Judge Allow'd of Upon Securitys being
given as the Act requires.

Att'r JOHN PAYNE, D.Reg'r.

[Footnote 2: Attorney-general of the province of Massachusetts Bay
1722-1723, 1729-1749.]

_152. Bond for Appeal in Prize Case. December 19, 1741._[1]

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