Washington, J.,
delivered the opinion of the court, in this case, as follows : — This case differs in no material respect from that of The Joseph, just decided, except that in this a question arises as to the validity of the capture. The master of the Grotius, in answer to the second standing interrogatory, swears that he hath never considered the ship to have been taken or seized as prize. That he was present when an armed schooner, under English col-•Ü -j ors, met with her, the commander of which represented her *to be a J British privateer called the Bream, and requested him to take on board a man, and treat him as a gentleman, until he arrived in the United States ; to which he consented. This testimony of the master is confirmed by Gilman, the mate, in answer to the 2d and 3d interrogatories, who adds, that Very, the man who was put on board, never conducted as prize-master, nor in any other manner than a passenger would, during the voyage. Pierce, one of the seamen, who accompanied the master on board the schooner, swears that he never knew the ship was seized as prize, until after her arrival within the Boston light-house. Chambers, another seaman belonging to the Grotius, in answer to the third interrogatory, says that she was met by an armed schooner, under English colors, which obliged the mate of the ship go on board her, and afterwards sent him back with a man who, on the next day, declared himself to be put on board as prize-master, saying that if she should fall in with a French vessel, he should be obliged to show his commission. That he knows not upon what pretence or for what reasons he was taken, not knowing, in fact, that she was made prize of, until her arrival at Boston.
Daniel J. Very, the alleged prize-master, has deposed, on oath, that he was present at the capture of the Grotius by the Frolic ; that the master of the ship was ordered on board the schooner with his papers ; and that he, Very, was directed by his commander to go on board as prize-master, and this in the presence of the master of the Grotius ; that the master of the ship was to keep possession of the papers, and to navigate her into port. That he accordingly went on board as prize-master, carrying with him a copy of the commission of the Frolic ; and instructions, in writing, from the commander to him (Very) as prize-master. That the master of the Grotius informed his crew, that in case a British cruizer should board the Grotius, and they should be asked respecting the said Very, they were to answer that he was a passenger.
Without giving any opinion as to the regularity of admitting the affidavit of the prize-master as a part of the preparatory evidence, the court is of opinion, that the facts necessary for deciding upon the validity of the ^capture, are not sufficiently clear ; and that it will be proper to p make an order for further proof, to be furnished by the captors and >- the claimants, with respect to all the circumstances of the capture. This point appears not to have been made or considered in the court below.
Order for further proof.