The opinion of the court was delivered by: Gray, J.
Sol. Gen. Phillips, for appellant.
James Fullerton, for appellee.
This is an appeal from a decree of the court of claims in favor of the appellee in a suit brought by him under the act of August 8, 1882, c. 480, to recover the amount necessary to make up his lawful share of the prize money awarded for the capture of the rebel ram Albemarle. The facts of the case, as appearing in the findings and judgment of the court of claims, are as follows:
The rebel iron-clad ram Albemarle was captured and sunk at Plymouth, in the Roanoke river, in the state of North Carolina, on the night of October 27, 1864, by the United States Picket Launch No. 1, an armed torpedo launch propelled by steam, attached to a division of the North Atlantic blockading squadron, and commanded by Lieut. William B. Cushing, of the United States navy, and having on board six inferior officers (of whom the petitioner, a third assistant engineer, was one) and eight men. Lieut. Cushing had been, by order of the secretary of the navy, detached from the command of the United States ship Monticello, and directed to report for duty to Rear Admiral Porter, commanding that squadron; and had been assigned by the admiral to the command of this launch. It does not appear that the launch had any books. The Albemarle was afterwards raised by the United States forces, and appropriated to the use of the United States, and was twice appraised by duly-appointed boards of naval officers: the first time, before she was so appropriated, at the sum of $79,944, which was forthwith deposited by the secretary of the navy with the assistant treasurer of the United States at Washington; and the second time, under the act of April 1, 1872, c. 76, (17 St. 649,) at the sum of $282,856.90, which, less the sum already deposited, was likewise so deposited, pursuant to the act of January 8, 1873, c. 18, (17 St. 405.)
Upon successive prize proceedings in 1865 and 1873, in the district court of the United States for the District of Columbia, the Albemarle was condemned as prize of war, and it was adjudged and decreed that she was of superior force to the launch, and that her appraised value, deducting costs, and amounting to $273,135.09, be paid to the captors as follows: One-twentieth part to the admiral commanding the squadron at the time of the capture, one-hundredth part to the fleet captain, and one-fiftieth part to the officer ommanding the division to which the launch was attached, and the remainder distributed to the other persons doing duty on board the launch, in proportion to their respective rates of pay the service. In all the prize proceedings there was no appearance by or in behalf of any of the captors except Cushing. Before either of those decrees was made, three of the officers of the launch were promoted: Lieut. Cushing, in February, 1865, to the rank of lieutenant commander; and Acting Master's Mates William L. Howarth and Thomas S. Gay, in March, 1865, the one to the grade of acting master, and the other to the grade of acting ensign; and each promotion to date from October 27, 1864. The money so ordered to be distributed, amounted, after deducting the shares paid to the commander of the squadron, the fleet captain, and the division commander, to the sum of $251,284.29, which was distributed by the officers of the treasury department among all the officers and crew of the launch, or their legal representatives, in proportion to the respective rates of pay to which they were by law entitled on the day of the capture, except that Cushing, Howarth, and Gay were, by order of the secretary of the navy, paid in proportion to the rates of pay of the grades to which, after the capture, they had been promoted as aforesaid.
By the act of August 8, 1882, c. 480, congress referred the claims of the captors of the Albemarle to the court of claims, 'with jurisdiction and authority to hear and determine the same, and all defenses thereto which are or may be open to the United States, and to render judgment thereon, with the right of appeal as in other cases;' and if the court should find that any of the captors had not received their full and just share of the prize money awarded for the capture of the Albemarle, according to the proportions provided in the prize laws in force at the time of the capture, and that they were entitled to claim and recover the same, then to render judgment in favor of them, or their legal representatives, for such sums as, added to the amount already paid, should make up their lawful shares; and provided that no suit should be brought under the provisions of this act after one year from the date of its passage; and that any judgment rendered by the court of claims should be paid by the secretary of the treasury out of any money in the treasury applicable to the payment of prize to captors, and, failing such money, out of any money in the treasury not otherwise appropriated. 22 St. 738.
Within the time limited by this act all the officers and men of the launch, or their legal representatives, except Cushing, Howarth, and Gay, brought suits under it in the court of claims, which held that, according to the prize laws in force at the time of the capture, Lieut. Cushing was not entitled to prize money in proportion to his rate of pay, but only as commander of a single ship to one-tenth of the prize money, and had, therefore, received $30,927.84 more than he was by law entitled to; and that Howarth and Gay were entitled to prize money only in proportion to their rate of pay as acting master's mates on the day of the capture, and not according to the pay of the grades to which they had since been promoted, and had, therefore, received, Howarth $18,979.02, and Gay $11,801.52, more than they were respectively entitled to; and that by the amount of these three sums, or $61,708.38, the other 12 captors had received less than they were entitled to; and gave judgment for each of them, or their representatives, accordingly. 19 Ct. Cl. 51.
The name, rank, and pay of the officers and crew on board the launch at the time of the capture, the amount which each one, or his representatives, had received under the prize proceedings, the amount which each should have received in the opinion of the court of claims, and the amount now due to each according to the judgment of that court, were as shown in the following table:
NAME AND RANK. PAY. PRIZE COURT OF DUE.
William B. Cushing, lieutenant $1,875 $56,056 27 $25,128 43 ........
Francis H. Swan, acting ass't paymaster 1,300 31,102 50 45,793 80. $14,691 30
William Stotesbury, third ass't engineer 1,000 23,925 00 35,226 00.. 11,301 00
Charles L. Steever, third ass't engineer 1,000 23,925 00 ...