to the leeward of which he had fallen. This representation is supported by the fact, that being at the Virgin Islands on the 16th, he might, by availing himself of the current, have reached St. Thomas's before he was descried by the Nonsuch. It is also supported by the great improbabilty of his attempting to enter an enemy's port without obtaining a license, which would have protected him from hostile capture in that port, as well as on his voyage to it. That he had not a license is proved, not only by his own oath, but by the fact that, although the master and the crew, as well as the vessel, have remained in possession of the captors, no license has been found, and there is no reason to believe that it could have been secreted, and it is not probable that it would have been destroyed on the appearance of the Nonsuch, since she chased and boarded under British colors. prize, her master, at least, ought to have been returned to her, and her papers should have been sealed and put in possession of a prize-master. If he determined not to seize her as prize, her master and crew ought to have been restored, that she might have prosecuted her voyage. No apology can be made for leaving her in the condition in which she was placed. Stripped of her crew and of her papers, left in possession of an officer and two men, without orders whither to proceed, she was exposed to dangers; for the loss resulting from which, those who placed her in this situation must be responsible. Had she been regularly captured, many of the difficulties encountered in St. Jago del Cuba might have been avoided; had she been restored, she might, and probably would, have reached her port of destination in safety. The proceedings of the Nonsuch, after a search, converted the whole transaction into a wanton marine trespass, for which no sufficient excuse has been given. The voyage, then, must be considered as entirely fair. The next subject of inquiry is, the right to visit and detain for search. This However meritorious may have been the is a belligerent right which cannot be drawn services of the private armed vessels of the into question. As little can it be questioned United States, in the aggregate, those individthat the situation of the Anna Maria justified a uals who have acted with this culpable disrefull and rigorous search. But this search gard to the rights of others ought not to escape ought to have been conducted with as much the animadversion of the law. The conduct of regard to the rights and safety of the vessel the officers of the Nonsuch on board the Anna detained as was consistent with a thorough ex- Maria was unjustifiably licentious. Breaking amination of her character and voyage. All open trunks when keys were offered [*335 that was necessary to this object was lawful; them, taking out the crew and putting them in all that transcended it was unlawful. irons, and leaving her in this situation, were 333*] *When the Anna Maria was boarded, acts not to be excused. The honor and the her master gave a plain and true account of the character of the nation are concerned in recharacter of the vessel and cargo, which was pressing such irregularities; and the justice of verified by the ship's papers, and which does the court requires that compensation should be not appear to have been doubted. But although made for the injury which the libelants have the vessel and cargo were American, the trade sustained. might be hostile; and the right to examine fully into this fact was complete. There was no prevarication in the statements of the master which could excite suspicion, and the search for other papers was continued for two hours without intermission. Although the character of British officers was maintained, nothing indicating British connection in the voyage was discovered; and, although the trunks were broken open and searched, no additional papers were found. It was pressing the right of search as far as it could bear, to determine on repeating it the next day; and an inattention to the safety of the Anna Maria, which only her neighborhood to the island of St. Thomas could excuse, longer to detain her. But there is some reason to doubt whether further search was the real object of this detention. It does not appear to have been recommenced at nine the next morning; and this leads to the opinion that the vessel was detained, not so much to make further search as in the hope of drawing from the master, or some of the crew, who were all in irons, something which might lead to the condemnation of the vessel and cargo. This conduct must be viewed with much lenity to be pardoned. But whatever excuse may be, made for the detention thus far, none can be given for the transactions which remain to be noticed. 334*] * Before the captain of the Nonsuch left the Anna Maria, in pursuit of other objects, he ought to have decided either to seize her as prize or to restore her. Had he seized her as The sentence of the Circuit Court must be reversed, and the cause remanded to the Circuit, with directions to reverse the sentence of the District Court, and to direct commissioners to ascertain the amount of damages sustained by the libelants; in doing which the value of the vessel, and the prime cost of the cargo, with all charges, and the premium of insurance, where it has been paid, with interest, are to be allowed. Out of this decree must be deducted the amount of the proceeds of the Anna Maria and cargo, unless the libelants shall choose to abandon those proceeds to the defendants. If the contract be vague and uncertain, or the evidence to establish it be insufficient, a court of equity will not enforce it, but will leave the party to his legal remedy. by the exhibits in the cause, that the above entry was surveyed on the 28th October, 1786. The defendant states in his answer that pre The plaintiff, who seeks for the specific perform-viously to his employing the complainant to ance of an agreement, must show that he has per formed, or offered to perform, on his part, the acts which formed the consideration of the alleged undertaking on the part of the defendant. A1 PPEAL from a decree of the Circuit Court for the District of Kentucky. The appellee filed his bill in that court, stating that, in the year 1779, a number of persons, amongst whom was the defendant below, who is the appellant in this court, employed him, the complainant, to locate lands for them, in the then district of Kentucky; that he received from the defendant certain land warrants to the amount of 25,000 acres, which he located for him on the 20th of May, 1780. That the terms on which he was to do the business were, that the owner of the warrants should furnish all the money that should be necessary for locating and surveying the said lands. That the complainant should direct the doing thereof, and receive, for his compensation, what should 337*] *be given to other persons for similar services. The bill then avers, that the usual proportion which was then generally given to locators for similar services was one-third part of the land so located by them. The complainant further alleges that he was prevented from surveying the above entry by the Indians, who were very troublesome, and who rendered the execution of such business difficult and dangerous; that, during this time, the defendant procured a survey to be executed of the entry made in his name by the complainant, and obtained a patent for the same. The bill admits that the complainant received a sum of money from the defendant, which, however, he charges as paid on account of the expenses attending the locating and surveying the said entry, and not as a compensation for his services. The prayer of the bill is, for a conveyance of one-third part of the above-mentioned tract of 25,000 acres of land. It appears NOTE.-See note to Hepburn v. Dunlop, 1 Wheat, 179, and note to Morgan v. Morgan, supra, 2 Wheat. 290, as to specific performance. The aid of a court of chancery will be given to either party who claims specific performance of a contract, if it appear that in good faith, and within the proper time, he has performed the obligations which devolved upon him. Watts v. Waddle, 6 Pet. 389; Bates v. Wheeler, 1 Scam. 54. The court will decree specific performance of a contract for the conveyance of land situate in this state, although the contract is in the form of a penal bond, and though the defendant resides out of the state. Telfair v. Telfair, 2 Desau, (So.Car.) 271. Specific performance of a contract for sale of land will be decreed where the vendee has performed his part, and gone into possession with consent of the vendor. Thompson v. Scott, 1 McCord's Ch. 39. locate and survey his warrants, he received offers from other persons to do the business upon the terms stated in the bill, which he rejected, and that he was induced to authorize his friend, Mr. Webb, to place the warrants in the complainant's hands, in consequence of his having understood that he would undertake the business for a fair compensation in money. That Mr. Peachy, the agent of the defendant, paid to the complainant upwards of 7,000 pounds of tobacco within a few months after the entry was made. The answer (*338 further states that the defendant frequently applied to the complainant to have the entry, which he had caused to be made, surveyed; and that, after repeated promises to comply with these demands, made and broken, the complainant confessed that it was not in his power to execute the business, and after claiming the tobacco, which he had received as a compensation for his services, advised the defendant to apply to some other person to attend to the surveying of the entry. The defendant owns, that from the year 1785, when this advice was given, until some time after he claimed his grant, he was frequently in company with the complainant, who, to the best of his recollection, never intimated that he expected to receive any part of the lands, nor was any such demand ever made by the complainant until the institution of this suit in 1794. There was an amended bill filed in this cause, and the above answer was, by the agreement of parties, received as an answer to this bill. The amended bill states that the entry of the 25,000 acres of land was made by the intervention of a Mr. Shelby, a particular friend of the complainant. That the defendant caused the said entry to be surveyed without consulting the complainant on the subject, although he avers that he was always ready and willing, whenever time of the contract. Hepburn v. Dunlop, 1 Wheat. 179, and note to same case; Hoggart v. Scott, 1 Russ. & My. 293; Seymour v. Delancey, 3 Cow. 445; Pierce v. Nichols, 1 Paige, 244; Hepburn v. Auld, 5 Cranch, 262; Cotton v. Ward, 3 Monro, 304, 313; Baldwin v. Salter, 8 Paige, 473. When the vendee is in possession, and the vendor, without any positive fault, has omitted, or from the state of the title has been unable, to comply with his covenant, a court of equity will decree specific performance in favor of the vendor; time not being essential in such cases generally. Craig v. Martin, 3 J. J. Marsh. 54; Waters v. Travis, 9 John. 450. Upon a failure to pay a first installment of purchase money, and a tender of the whole when the second became due, specific performance decreed. Gibbs v. Champion, 3 Ham. 336. A court of equity will not generally decree speThe party who comes to compel specific perform-cific performance in favor of a party who has not ance must show that he has performed on his part, performed, especially if injury from such non-peror that he has been able and willing, and still was formance has resulted to the other party; but if ready, to perform his part of the contract. Ib. the defendant has taken possession and paid part of An obligor shall not be permitted to avail himself the purchase money, and executed the agreement of an uncertainty in the boundaries of the land he in part, the court will consider him as having waivcontracts to convey, so as to avoid a specific per-ed his objection to plaintiff's neglect, and will deformance; but the court will decree a conveyance cree execution of the agreement. Vail v. Nelson, according to the best lights which the circumstances afford. Kennedy v. Davis, 2 Bibb. 344. A court of equity will decree a specific performance of a contract for the sale of land, if the vendor is able to make good title at any time before decree pronounced, although he had not such title at the 4 Rand. 478; Ramsey v. Brailsford, 2 Desau, 52. To obtain specific performance plaintiff must show the performance of the conditions precedent on his part, or account for his failure and show that his defalcation is a proper subject for compensation. Stevenson v. Dunlop, 7 Monro, 142. he might have been called upon for this purpose, to show the beginning and other calls of the entry, and to give the necessary directions to the surveyor. The depositions taken in the cause prove, that at the time when the entry was made it was usual in Kentucky for the locators of lands to 339* ]receive from the owners, as a compensation for their services, a proportion of the land so located, besides the expenses, which might be incurred in surveying the land, which the locator received from the owner in money. But what that proportion was is not precisely ascertained by any of the witnesses. They state, generally, that it was sometimes onethird and sometimes one-half. Mr. Peachy, the agent and attorney in fact of the defendant below, from the year 1780, when the defendant went to the West Indies until his return, states that he had lands located in Kentucky, for a part of which he allowed the locator one-fifth, and for the residue one-tenth, of the land located, as a compensation for his services, beside paying the expenses of surveying, &c. This witness further states that he never heard or understood in conversation with the complainant, the defendant, or Mr. Webb, with whom the defendant deposited his warrants to be delivered to the complainant, that the defendant was to give any part of the land in consideration of locating the same. The Circuit Court decreed that the defendant below should convey to the complainant one-third of the said tract of 25,000 acres of land, according to certain boundaries which had been previously laid down under an order of that court, from which decree the defendant 'appealed. WASHINGTON, J., delivered the opinion of the court: In deciding this case we are necessarily led to the examination of the following questions: 340*] 1. What was the contract between these parties, the specific execution of which is sought to be enforced by this bill, and how is it Specific performance of a prior contract, decreed against a subsequent purchaser, with notice of plaintiff's equitable title. And it seems that if plaintiff had been in possession under the agreement, that would have been constructive notice to the purchaser of his actual interest or equitable title under the agreement. Wadsworth v. Wendell, 5 John. Ch. 224. proved? 2. Has the complainant entitled himself to ask for an execution of the contract, in case the same should be sufficiently proved? The amended bill states that the complainant received certain land warrants from the defendant with instructions to locate the same in Kentucky, but that no particular stipulation was made respecting the compensation which he was to receive for his services, except that the general custom of the country in similar cases, and the general tenor of the complainant's contracts with other persons for such services were to furnish the rule of compensation to be allowed to him. This rule is averred to be one-third of the land located. The defendant, in his answer, states that no contract of any sort was entered into between the complainant and himself. He even denies that he had any conversation with the complainant on this subject at any time previous to the entry being made. He states that offers were made to him by other persons to locate his warrants on the terms mentioned in the bill, which he rejected, and that, in consequence of his having understood that the complainant would do the business for a fair compensation in money, he deposited his warrants with his friend, Mr. Webb, with a request that he would engage the complainant to locate them. The allegations of the bill in relation to this contract are wholly unsupported by the evidence in the cause; and, on the other hand, the answer, in relation to this point, is strongly corroborated by the testimony of Mr. [*341 Peachy; by the uncertainty of the alleged usage as to the proportion of the land to be allowed to the locator; the improbability that so loose a contract would be made so early as the year 1779, when a usage, if any existed, must necessarily have been recent and unknown, especially to persons living remote from Kentucky, at that time wild and unsettled; and, above all, by the circumstance that from the year 1786, when the survey was made, under the direction of another agent, no demand of a The court will not decree specific performance of a contract for the purchase of a house, where the buildings are not completed within the stipulated time. Colcock v. Butler, 1 Desau. 307. The court will not compel the specific performance of an agreement of sale, and oblige defendant to accept a title which the plaintiff cannot make out to be clearly good and free from incumbrances. Butler v. O'Hear, 1 Desau. 382; Lewis v. Herndon, v. Delancey, Hopk. 436. The principle of equity, with respect to specific performance, is, that if, substantially, the pur-3 Litt. 358; Kelly v. Bradford, 3 Bibb, 317; Seymour chaser can have the thing contracted for, a slight variation in the qualifications of it will not disable the vendor from having a decree of specific performance, when the difference is such that it can be compensated in money. Magennis v. Fallon, 2 Moll. 588. If the important part of the agreement be performed, and an inconsiderable part be left unfulfilled, or partly, unable to perform the residue, without bis fault, equity will decree a specific performance. Church v. Steele, 1 A. K. Marsh. 330; Johnson's Heirs v. Mitchell, 1 A. K. Marsh. 227. Where a contract for the sale of land has been in part executed by a conveyance of part of the land, and the vendor is unable to convey the residue, a court of equity will decree the repayment of a proportionate part of the purchase money with interest. Pratt v. Law. 9 Cranch, 156. The court refused to decree specific execution of a contract in a hard case, where the other party had not complied with the terms. Rugge v. Ellis, 1 Desau. 161; Turner v. Clay, 3 Bibb, 52; Ramsay v. Brailsford, 2 Desau, 582. The purchaser's objections to taking the land need not be confined to cases of doubtful title, but may be extended to incumbrances of every description which may embarrass him in the full enjoyment of his purchase. Garnett v. Macon, 6 Call. 308. An agreement must be in all respects full, fair, and honest in the beginning, and the performance of it fairly and conscientiously required, or the Court of Chancery will not enforce it. Bowman v. Irons, 2 Bibb, 78; Carberry v. Taunchill, 1 Harr. & John. 224. Vendee's previous knowledge of defects in the title is no reason for compelling him to take such title as vendor can convey, that being defective; where the agreement stipulates that vendor shall convey good title. Jackson v. Ligon, 3 Leigh, 161. If an agreement for the sale of lands be made, subject to a condition that the price thereof shall be afterwards ascertained by the parties, and one of the partiesdie without any price being agreed upon, such agreement is too incomplete and uncer part of the land appears to have been made by the complainant until the institution of this suit in the year 1794. This defect in the proof would seem to be fatal to the pretensions of the complainant. The contract which is sought to be specifically executed ought not only to be proved, but the terms of it should be so precise as that neither party could reasonably misunderstand them. If the contract be vague or uncertain, or, the evidence to establish it be insufficient, a court of equity will not exercise its extraordinary jurisdiction to enforce it, but will leave the party to his legal remedy.' 342*] *But if these objections could be sur mounted, that which remains to be considered under the second head appears to the court to be conclusive against the appellee. 2d. Has the complainant entitled himself to ask for an execution of the contract if he had proved it? It is very obvious, from the complainant's own showing, that the contract between himself and the defendant taken in connection with the alleged usage, was, that the former should not only make the entry, but should also cause the same to be surveyed under his direction and superintendence. It was the entry and the survey which constituted the location in the contemplation of the parties, and formed the real consideration for which the allowance of a part of the land to the locator was to be 1.-See, as to agreements, the performance of which will not be decreed by a court of equity for want of certainty, the following cases: Elliot v. Hele, 1 Vern. 406, Í Eq. Cas. Abr. 20; Bromley v. Jefferies, 2 Vern. 415; Emery v. Wase, 5 Ves. 849. But the court will, if practicable, execute an uncertain agreement by rendering it certain. Allen v. Harding, 2 Eq. Cas. Abr. 17. So an agreement to sell at a fair valuation may be enforced. Emery v. Wase, 5 Ves. 846; Milnes v. Gery, 14 Ves. 407. And if the terms of an agreement are to be ascertained by an award, being so ascertained, that agreement will be enforced in equity, if there is anything to be specifically performed; as estates to be conveyed, &c.; but where the parties have contracted that the value of their respective interests shall be as tain to be carried into execution by a court of equity. Graham v. Call, 5 Munf. 396. made. The complainant states, in his bill, that the owner of the warrants was bound by the usage not only to make this allowance, but was also to furnish all the *money neces- [*343 sary for locating and surveying the land, and he endeavors to excuse himself for not having caused a survey to be made. Now, if the mere making of the entry amounted to a full performance of the contract on the part of the locator, any stipulation with the same person for the expenses attending the survey would have been idle and unnecessary. But the evidence of Isaac Shelby, upon this point, is conclusive. He states that the usual compensation to a locator was one-third of the land for locating and directing the survey. If this, then, be the contract, as alleged by the complainant himself, in what manner has he performed his part of it? In the first place, the entry was made, not by him, but by Isaac Shelby, under some agreement which is not disclosed in the bill, nor proved by any testimony in the cause. In the next place, it does not appear that, from the year 1780, when this entry was made, the complainant made one effort to have the entry surveyed; but the defendant, after wasting about 6 years, was compelled to employ another agent to have that service performed. How does the complainant excuse himself for the breach of his contract in this respect? He alleges that he was prevented, during all that certained by arbitrators, or an umpire, if the acts done by the parties for the purpose of carrying their agreement into effect by an award are not valid at law, as to the time, manner, or other circumstances, the agreement cannot be enforced in equity, unless there has been acquiescence, not-' withstanding the variation of circumstances, or the agreement evidenced by such award has been part performed. Blundell v. Brettargh, 17 Ves. 222. And if, on a covenant to build a house, the transaction is, in its nature, loose and undefined, and it is not expressed distinctly what the building is, so that the court could describe it as a subject for the report of the master, a specific performance will not be decreed. Mosely v. Virgin, 3 Ves. 185; vide ante, p. 302, note d. Where the valuation, fixing the price was uncertain, specific performance cannot be enforced. Where an agreement to make a lease is entered Hoperaft v. Hickman, 2 Sim. & Stu. 130. into, upon certain terms, the party to whom the Where payment of the purchase money is a lease is to be made cannot enforce a specific per- condition, precedent to the conveyance, and after formance unless he performs his part of the agree-default, defendant accepted part of the purchase ment, or offers to perform, and unless he shows that he is willing and able to do so. Harris v. Banks, 1 Rand. 408. Upon a contract for sale of an estate, at a stipulated price, neither party can compel performance in equity, until he has on his part performed, or tendered to perform. Greenup v. Strong, 1 Bibb, 590; King v. Hamilton, 4 Pet. 311. Specific execution will not be decreed unless the consideration has been paid. Tunstal v. Taylor, 1 A. K. Marsh. 43; Bearden v. Wood, 1 A. K. Marsh. 451. Specific execution of contract will not be enforced unless parties have described and identified the particular tract, or unless the contract furnishes the means of identifying with certainty the land to be conveyed. Reed v. Homback, 4 J. J. Marsh. 377. Where a party having partly performed an agreement, may be placed in statu quo, by receiving a compensation for what he has done, and is in default as to the residue, he is not entitled to a decree for the specific execution. Breckenridge v. Clinkinbeard, 2 Litt. 127. A person asking specific performance, must either show himself without default or must exhibit an excuse for such default. Campbell v. Harrison, 3 Litt. 292; Moore v. Skidmore, 3 Litt. Sel. Ca. 453. money, but plaintiff, though repeatedly called upon, refused to pay the residue, and defendant, after giving notice of his intention to do so, sold and conveyed the land to another, and plaintiff afterwards tendered the money due, and filed his bill for specific performance. Held, that specific performance could not be decreed, nor decree made for compensation in damages, but party was left to his remedy at law on the covenant. Hatch v. Cobb, 4 John. Ch. 559; Kempshall v. Stone, 5 John. Ch. 193; Doar v. Gibbs, 1 Bai. 371. Contract will not be specifically executed unless it is proved to exist, and it is certain in its terms. Newman v. Carroll, 3 Yerg. 18. Where a purchaser cannot get a title to all he contracted for, if he can get the substantial inducement to the contract, he may insist upon taking, or he may be compelled to accept, a title to so much as the other party can give a good title to, with a reasonable compensation for what the party cannot effectually convey. Evans v. Kingsbury, 2 Rand. 120; Hays v. Hall, 4 Port. 374. Where a tract of land was sold, and the vendor did not have legal title to a part of it. Held, that he had no right to a specific performance. Reed v. Noe, 9 Yerg. 283. A conveyance is never ordered until the purchase price is paid. Oliver v. Dix, 1 Dev. & Bat. Eq. 605. time, by Indian hostility, which rendered it troublesome and dangerous to make surveys in the part of the country where this entry was made. This assertion is not proved by a single witness except Thomas Allen, who deposes, that from 1780 to 1789, he believes it was difficult 344*] to get any persons to risk their lives in making surveys on the Ohio, towards the Yellow Bank, except for high wages, as he has been informed. Now, even if this witness had positively proved the point for which he was examined, still his testimony could not avail the complainant, since he admits that for high wages men could have been procured to perform the service; and those wages, it was incumbent on the complainant, who claims no less than between 8,000 and 9,000 acres of this land, to pay. The difficulty and expense which would have attended his endeavors to perform this part of his contract afford no excuse for his breach of it, even if, in a case like this, any excuse could be admitted. But what is conclusive as to this point is that the entry was in fact surveyed in 1786, without any danger or difficulty, so far as the record informs us. The complainant alleges that he was always ready and willing, whenever he might have been called upon for that purpose, to show the beginning and other calls of the entry, and to give the necessary directions to the surveyor. This allegation is positively denied in the answer, which states that the complainant declined making or attending to the survey, and that he advised the defendant to employ some other person to do the business. Thus it appears that the complainant has failed not only to prove the contract stated in the bill, but also his performance of those acts which formed the consideration of the alleged promise on the part of the defendant. 345*] The decree must therefore be reversed, and the bill dismissed with costs. Decree reversed. ligerent may exercise over every vessel, except a the vessel of a citizen, or neutral), are released from The modern usages of war authorize the bringing one of the principal officers of the vessel detained on board the belligerent vessel, with the papers, for examination. APPEAL from the Circuit Court for the Dis trict of Massachusetts. This schooner, with her cargo, the property of the claimant, on a voyage from Baltimore to Bordeaux, fell in with the President and Congress frigates, on the night of the 16th October, 1813. Commodore Rodgers was the commander of the President, frigate, and the commodore and commander of the squadron composed of those two ships then in company. Captain Smith, deceased, and charged in the libel as a co-defendant, commanded the Congress. On the Eleanor being discovered by the two frigates, she was chased by the Congress and overhauled. The President stood on her course, being out of sight at the time she was overhauled and when she was subsequently dismasted, and so continuing until the signal guns were fired from the schooner. The *master, super-[*347 Cited-1 Bald. 487, 494; 2 Paine, 8; Hemp. 246, 478; cargo, and the officers and crew of the Eleanor, 5 Mason, 256; 3 Cliff. 161. [PRIZE.] THE ELEANOR. DONNELL, Claimant. A libel against the commander of a squadron calling on him to proceed to adjudication, or to make restitution in value, of a vessel and cargo, detained for search by the captain of a frigate belonging to the squadron, and lost while in his possession. Libel dismissed. The commander of a squadron is liable to individuals for the trespasses of those under his command, in case of positive or permissive orders, or of actual presence and co-operation. But, quære, how far is he responsible in other cases? Where a capture has actually taken place, with the assent, express or implied, of the commander of a squadron, the prize-master may be considered as a bailee to the use of the whole squadron, who are to share in the prize money, and thus the commander may be made responsible; but not so as to mere trespasses, unattended with a conversion to the use of the squadron. The commander of a single ship is responsible for the acts of those under his command; as are, likewise, the owners of privateers for the conduct of the commanders appointed by them. To detain for examination, is a right which a bel- on seeing the frigates, considered them British cruisers, and when they found she could not escape them, concluded they were captured by the enemy. This produced a very general determination, on the part of the crew, to take no further concern in the navigation of the schooner. When boarded by Lieutenant Nicholson, of the Congress, the schooner was in the state of confusion to be expected from such a determination. He ordered the master to take one of his mates, and his papers, and go on board the frigate. The captain, after giving some orders to his second mate to adjust the sails of the schooner, which were not complied with, went with his first mate and papers, in the frigate's boat, to the Congress. Lieutenant Nicholson, on being asked by a boy what frigate it was, said it was the Shannon; immediately afterwards he undeceived the supercargo, whom he recognized as an old acquaintance, but said he was ordered not to make himself known, and, therefore, requested the supercargo not to disclose it. Upon endeavoring to restore order, and to provide for the safe navigation of the schooner, he could get no assistance from the crew (who refused to obey his orders, considering him a British officer), except from the second 17 257 |