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HEIRS

CARTER's Court to the Circuit Court, the latter « shall therein

have all the powers of the chancellor” of the state of

Maryland; and by the laws of Maryland the decree. CUTTING of the chancellor in a like case would be final. 2. That & WIFE. the decree of dismissal is not any final judgment, order,

or decree of the Circuit Court wherein the matter in dispute, exclusive of costs, exceeds one hundred dollars.

The majority of the Court cannot yield assent to the validity of either of these objections. As to the first, we are of opinion that the conclusiveness of its sentence forms no part of the essence of the powers of the Court, Its powers to act are as ample, independent of their final quality, as with it. Besides the act of February 27, 1801, § 8, (vol. 5, p. 270) has expressly allowed an appeal from all final judgments, orders and decrees of the Circuit Courts” where the matter in dispute exceeds the limited value, and there is nothing in the context to narrow the ordinary import of the language.

We cannot admit that construction to be a sound one, which seeks by remote inferences to withdraw a case from the general provisions of a statute, which is clearly within its words and perfectly consistent with its intent. The case of Young v. the Bank of Alexandria, 4 Cranch, 384, is, in our judgment, decisive against this objection.

As to the second objection, it is conceded by both parties that the estate devised to the respondent, Sally C. Cutting, is worth several thousand dollars. If, then, the probate of the will had any legal operation and was not merely void, the controversy as to the validity of that probate was a matter in dispute equal to the value of the estate devised away from the heirs. It cannot be doubted that the Orphan's Court had jurisdiction to allow probate of wills made by persons in foreign states; and that probate, once allowed, operated as a sentence affirming the validity of such wills between the parties so far as the lex loci could give them operation. It is understood that a will regularly proved in another state in striet conformity with the laws of that state, acquires, if it possess the other legal requisites, a binding efficacy in Virginia, so that it may be admitted to record there. The estate devised is understood to be situated

HEIRS

V.

in Virginia, and the title of the heirs thereto would con- CARTER'S sequently be affected by the probate in this district. The probate then not being merely void, but affecting the title to lands exceeding one hundred dollars in va- CUTTING lue is a matter in controversy beyond that value within & WIFE. the purview of the act of 1801.

The decree of the Circuit Court dismissing the petition is reversed, and the cause is to be remanded to that Court with directions to proceed to a hearing upon the merits.

THE VENUS, RAE, MASTER.

APPEAL from the sentence of the Circuit Court

If a citizen of for the district of Massachusetts.

the United States esta

blishes his dow The following were the facts of the case, as stated by micil in a foWASHINGTON, J. in delivering the opinion of the Court. reign country,

between which

and thie United This is the case of a vessel which sailed from Great States hustiliBritain, with a cargo belonging to the respective Clai- ties afterwards mants, as was contended, before the declaration of war property shipby the United States against Great Britain was or ped by such could have been known by the shippers. She sailed

citizen before

kvowledge of from Liverpool on the 4th of July, 1812, under a Bri- the wary and tish license, for the port of New York, and was cap

captured by

an American tured on the 6th of August, 1812, by the American cruizer after privateer Dolphin, and sent into the district of Massa- the declaration chusetts, where the vessel and cargo were libelled in condemned as the District Court.

lawful prize. Upon a ship

ment of goods The ship, 100 casks of white lead, 150 crates of to be sold, on earthen ware, 35 cases and 3 casks of copper, 9 pieces.joint account of cotton bagging, and a quantity of coal, were claimed signee & shipby Lenox and Maitland.

Jatter alone at

the option of 198 packages of merchandize and 25 pieces of cotton the consignee, bagging were claimed by Jonathan Amory, as the joint the right of property of James Lenox, William Maitland and Alex- not vest in the

per, or of the

THE

ander M.Gregor; not distinguishing the proportions of VENUS, each : but the 25 pieces of cotton bagging were after

RAE, wards clai:ned for M.Grégor as his sole property, and MASTER, also 5 trunks of merchandize.

Consignee until 21 trunks of merchandize were claimed by James he is electione Magee, of New York, as the joint property of himself under the op- and John S. Jones, residing in Great Britain. rion given him.

two parts ners own joint The District Court, on the preparatory evidence, dely, a commer- creed restitution to Magee and Jones, and also to LeNew York, & nox and Maitland, except as to the 100 casks of white one of their leail; as to which, and as to the claim of M Gregor, obtains an A. further proof was ordered. merican register for a ship ky swearing From this thecree, so far as it ordered restitution of that he, toge

This the merchandize to Magee and Jones, and to Maitland, partner, of the and of the ship to Lenox and Maitland, the captors apcity of New York, mer

pealed to the Circuit Court, where the decree was afchant, are the firmed pro forma, and an appeal was taken to this only owners of

Court. the vessel for which the register is obtain

In April, 1813, the cause was heard on further proof ed, when in fact lis part- in the District Court; and in August the claim of ner is comicil. M-Gregor was rejected, as well as that of Lenox and ed in England, Maitland to the wbite lead.

But at another day, on a liable to for- further hearing, the Court ordered restitution to feiture under M.Gregor of one fourth of the property claimed by gress of De-him, and condemned the other three fourths as belongcember 31st, ing to his partners, being British subjects. Both parV.S. vol. 2, p.

ties appealed, as did also Lenox and Maitland in rela135..

tion to the white lead. A pro forma decree of affirmance was made, from which an appeal was taken to this Court.

1792. Laws

Maitland, M.Gregor and Jones were native British , subjects, who came to the United States many years prior to the present war, and, after the regular period of residence, were admitted to the rights of naturalization. Some time after this, but long prior to the declaration of war, they returned to Great Britain, settled themselves there, and engaged in the trade of that country, where they were found carrying on their commercial business at the time these shipments were made, and at the time of the capture. Maitland is yet

THE

in Great Britain, but has, since he heard of the capture, expressed his anxiety to return to the United

VENUS, States; but has been prevented from doing so by vari RAE, ous causes set forth in his aflidavit. M.Gregor actual- MASTER. ly returned to the United States some time in May last-Jones is still in England,

PITMAN, for the captors.

1

In relation to the several-claims set up in this case, it will be contended, on the part of the captors, 1st. That they are to be determined, as it respects the capacity to claim, by the national character of the Claimants at the time of the capture. If the Claimants, at the the time of capture, were Britisha subjects the property is undoubtedly liable to condemnation.

It is admitted, on all hands, that the Claimants, Maitland, M Gregor and Jones, had acquired a domicil in Great Britain at the time of the declaration of war; and were actually domiciled in that country at the time of the capture: they must, therefore, be considered as British subjects, in reference to the property claimer by them respectively. Nor will an intention to return to the United States, if that intention be not manifested until after the capture, be of any avail; for it is a principle in prize law, that the national character of property, during war, cannot be altered, in transitu, by any act of the party subsequent to the capture.

Tlie following cases are considered as going to establish the foregoing positions : 1 Rob. 97, 115. The Herstelder. id. 90, 107. The Danchebaar Africaan. 5 Rob. 257. The Boedes Lust. 3 Rob. 17, 12. The Indian Chief. 1 Rob. 12, 14. Cases cited by sir W. Scott in the Vigilantia. 2 Dallas, 42. Sloop Chester V. Brig Experiment. 3 Rob. 29. The Indian Chief. Livingston anul al. v. the Maryland Ins. Co. decided in the Supreme Court of the United States at the last term. 13 Bos. and Pul. 207. Case of the Franklin cited in note. 3 Rob. 37, 38. The Citto, 5 Rob. 60. The Diana.

2 Rob. 263, 323. The Harmony. 5 Rob. 270. The Jonge Classiná.

It appears that Maitland has, since he heard of the capture, expressed his anxiety to return to the United

THE States; and that M Gregor did actually return. But VENUS, we contend, upon the principle above stated, that nei

RAE, ther the intention of Maitland, although formerly naMASTER. turalized in this country, nor the actual return of

M'Gregor, inasmuch as they did not take place till after the capture, can avail for the purposes of their respective claims.

And even if it should be proved that Maitland's intention to return existed previous to the capture, it would not avail him, if nothing more than intention could be proved. The case of the President, 5 Reb. 277, is in point: it is there decided that an intention to return is of no avail, unless that intention be evidenced by some overt-act. Here no such overt-act, on the part of Maitland, is proved. The following cases go to establish the same point: 3 Rob. 37, 38. The Citto. Curtisos' case cited in 5 Rob. 65. The Diana, and in 3 Rob. 17, 12. The Indian Chief. As to M Gregor, vid. 3 Rob. 264, 322. The Harmony.

M.Gregor's return to America, after capture of the vessel, will not avail him unless he can prove,

1st. That he had, previous to the capture, set himself in motion to return.

2d. That he had done so with a bona fide intention of remaining in America.

3d. That he had no intention of returning to England.

Vid. the case of the Indian Chief, 3 Rob. 17, 12.

But the national character of these parties, Maitland, M.Gregor and Jones, does not depend upon domicil. They were originally native subjects of Great Britain ; and, after being naturalized in this country, they returned to England, and resumed their native allegiance, in violation of their oath of naturalization. By this conduct we contend that they lost the character of American citizens, and could not. flagrante bello, resume it for the mere purpose of protecting their property. In à Court of the law of nations, as well as by the navigation laws of the United States, they cannot but be con

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