11 E C 



or attended with a breach of the peace. Thus, e. gr. if 

 my horfc is taken away, and I find him in a common, a fair, 

 or a public inn, I may lawfully fiize him to my own ufe; but 

 I cannot juilify breaking open a private liable, or entering 

 on the grounds of a third perfon to take him, except he be 

 felonioufly itolen, but mull have recourfe to an aftion at 

 law. Recaption is unlawful, if it be done with intention 

 to fmother or compound a larciny. Sfee Re.stituti©n of 

 Siokn Goods. 



Rfcaptiov alfo is the taking a fecond diflrefs of one 

 formerly dillraincd for the fame caufc, and alfo during the 

 plea grounded on the former diilrefs. 



Recaption is alfo the name of a writ lying for the party 

 thus dillrained to recover damages. See Repj.evin. 



RECAPTURE, in Naval Infurance, denotes the reco- 

 very of a fhip, or its cargo wholly or in part, after having 

 been taken by an enemy. For every lofs occafioned by 

 capture, whether lawful, /'. e. when made by a declared 

 enemy, according to the laws of war, or unlawful. I.e. when 

 it is agamll the rules ellabliflicd by the law of nations, 

 whether by friends or enemies, the infurcr is liable, agree- 

 ably to the comprehenfive and exprefs words of the policy : 

 and in every cafe of capture the infurer is anfwerable, to the 

 extent of the fum infured, for the lofs aftually fullained. 

 Tliis may be either total, as where the (hip and goods infured 

 are not recovered ; or partial, as where the (hip is recaptured 

 or reltored before abandonment ; in which cafe the infurer is 

 bound to pay the falvage, and any other neceffary expence the 

 infured may have incurred by the recovery of his property. 

 The infurer is liable for a lofs by capture, whether the pro- 

 perty in the thing infured be changed by the capture or not. 

 As to the length of podeflion by an enemy, which is deemed 

 fufficient to divelt the property out of the original owner, 

 or the effeft of a recapture in revelting it ; thefe are matters 

 which can never now come direftly in queftion between the 

 infurer and infured, in any caie of uifurance upon real in- 

 tereft. In gaming infurances, or infurances without interelt, 

 indeed, when there was a recapture, the claim, as for a 

 total lofs, feems formerly to have involved the queftion, 

 whether the property in the thing infured had, by the capture, 

 or any proceedmg founded on it, been divefted out of the 

 original owner, or not, before the recapture. Neverthe- 

 lefs, when a fhip is infured " interell or no intereft," it has 

 been repeatedly determined, that if the fliip be taken, it is 

 a total lofs, however illegal the capture may be, and though 

 the (hip may be retaken and reftored to the owner. But 

 thouo-h no queftion can now arife between the infured and 

 the infurer, as to the effefl of a capture or recapture, in di- 

 vefting or revetting the property ; it may not be deemed 

 unimportant to inquire when a capture ftiall be deemed to 

 transfer the property to an enemy, and what (hall be the 

 efl'edl of a recapture in revefting it in the original owner. 

 The general opinion feems to be, that by the law of nations, 

 the property of things captured in war is changed when all 

 reafoiKible hope of recovering them is gone ; and, with refpeft 

 to thmgs moveable, all reafonable hope of recovering them is 

 prefumed to be gone when they ai-e brought within the pro- 

 teftion of the enemy's fortrefs. Grotius fays, that (hips or 

 goods, taken at fea, become the property of the captors, 

 when they are brought into the enemy's harbours, or to the 

 place where his whole fleet is Rationed ; for then all hopes of 

 recovering them may be faid to vanilh. But, he adds, that 

 by the law of nations, as introduced among European ftates 

 in more modern times, things are confidered as captured, 

 when they have been 24 hours in the power of the enemy. 

 Others deny this rule of the law of nations, and infill on 

 the rule of the Roman law, that the prize muft be carried 

 Vol. XXIX. 



R E C 



" infra prafidia" before it can become the property of the 

 captors; and by " prxfidia" Bynkerlhoeck underftands the 

 camps, the pbrts, the towns, and the fleets, of the enemy. 

 Ill our courts of admiralty, however, it has always been 

 holden, by the marine law of England, independent of 

 the ftatute which commands reftitution, and fixes the rate 

 of falvage, the property is not changed in favour of a ven- 

 dee or recaptor, fo as to bar the orignal owner, till there has 

 been a regular lentence of condemnation : and in the reign 

 of king Charles II., a folemn judgment was given upon 

 this point ; and reftitution of a (hip taken by a privateer was 

 decreed, atter (he had been fourteen weeks in the enemy's pof- 

 feftion, hecaufejhe had not been condemned. The fame doctrine 

 has, in feveral inftances, prevailed in our courts of common 

 law. In one cafe it was holden that nine days' poffefTion by 

 the captor, and in another, that four years' podcllion, and 

 feveral voyages performed, will not change the property, 

 without a fentence of condemnation. 



Ill general, whenever a (liip is taken by the enemy, the 

 infured may abandon, and demand as for a total lofs ; and Ik- 

 Is not bound to make any claim or appeal in the enemy's 

 courts of admiralty, or to litigate there the validity of the 

 capture. 



But the infured is in no cafe hound to abandon ; and, as 

 the law now (lands, no capture by the enemy can be fo total 

 a lofs as to leave no poflibility of recovery, for the_;ux poJU'i^ 

 minii continues for ever, except in the cafe of a captured 

 (hip converted into a (hip of war. (Stat. 33 G. III.c. 66. 

 § 42.) If the owner himfelffiiould retake his (hip or goods, 

 he will be fully intitlcd to them ; and if they be retaken at 

 any time, whether before or after condemnation, he will be 

 intitled to reftitution, upon payment of 3 fettled falvage. 

 Stat. 29 G. II. c. 34. § 24 ; and 33 G. III. c. 66. § 42. 

 The chance of the owner's recovering his property, does 

 not, however, fufpend the demand of the infured, as for a 

 total lofs : but in the cafe of a recapture, juftice is done 

 to the infurer by putting him in the place of the infured. In 

 queftions upon policies of infurance, the nature of the 

 contradl as an indemnity, ami nothing elfe, is always liberally 

 coniidered. 



When there has been a capture, whether legal or not, 

 and the (liip has been recaptured or reftored, the infurer is 

 bound to defray all nece{rary expences which the infured has 

 been put to for the recovery of his property. He is there- 

 fore liable for a fum of money paid by the infured to the 

 captors, as a compromife made bondjide, to prevent the (hip 

 being condemned as prize. See Ransom. 



It often happens that a recaptured (hip is in a ftate to 

 profecute her original voyage ; and, in that cafe, it is the 

 intereft of the recaptors, as well as of the other parties con- 

 cerned, that (he (hould be permitted to do fo. The lalt 

 prize aft (ftat. 33 Geo. III. c. 66. $ 44.) has therefore 

 very properly provided, " That if a (hip be retaken before 

 (he has been carried into an enemy's port, it (hall be lawful 

 for her, if the recaptors confent thereto, to profecute her 

 voyage ; and it (hall not be necefl'ary for the recaptors to 

 proceed to adjudication till fix months after the recapture, 

 or till the return of the (liip to the port from whence (he 

 failed ; and the mailer, owners, or agents, with the confent 

 of the recaptor, may difpofe of their cargoes before adju- 

 dication : and in cafe the veftel (hall not return to the port 

 from whence (he failed, or the recaptors (hall have had no op- 

 portunity of proceeding regularly to adjudication within the 

 fix months, on account of the abfence of the faid veffel, the 

 court of admiralty (hall, at the inftance of the recaptors, 

 decree reftitution to the former owners, they paying falvage, 

 upon fuch evidence as to the court (hall, under all the cir- 

 ■5 T cumftances 



