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THE Restitution was decreed in the District Court, and the MERRI. decree was affirmed in the Circuit Court. An appeal ACK. was taken to this Court, where the captors pray con- "

demnation on the same grounds as in the Courts below.

HARPER, for the Appellants,

After stating the facts of the case, argued that the claims of the captors to the several parts of the cargo in question all rested on the same principle; viz. That no transfer of the property had taken place at the time of the capture. The shippers were British subjects.

1st. As to the property claimed by William and Joseph Wilkins.

his own.

It appears, from the evidence introduced into this part of the cause, that the goods were not to be delivered to the Claimants, until they had come first to the hands of the shippers' agent, who was to decide upon the solvency of W. and J. Wilkins, and to regulate himself accordingly, with regard to the delivery of the goods. He even had a power, under certain circumstances, to make them

W. and J. Wilkins were also to have an option, either to take the goods or not. But a more powerful argument than either, is, that the shippers themselves, in their letters both to the consignee and the Claimants, denominate these goods British property, and express their apprehensions that the American government will not protect it. Again, if these goods had been lost at sea, they conld not have been charged to the Messrs. Wilkins, as goods sold and delivered. The loss would clearly have been the loss of the shippers. The property in this part of the cargo cannot, therefore, be considered as having been vested in W. and J. Wilkins. It was clearly in the British shippers, both at the time of shipment, and at the time of capture. The claim of the Messrs. Wilkins ought, therefore, to be rejected.

2d. As to the claim of M.Kean and Woodland, HARPER, stated the facts, and prayed condemnation on the general principle that the property bad not been transferred.

3d and 4th. In opposing the respective claims of Kim

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THE MERRIMACK.

mel and Albert, and of John H. Browning & Co. the
counsel for the captors argued on nearly the same
grounds as in the case of W. and J. Wilkins; and, in
addition thereto, he urged the condition of payment which
was annexed to these two cases, and which was to be
performed before the delivery of the goods to the Clai-
mants.

He also made a second point, in regard to all the claims, viz. That, admitting the goods to have been the property of American citizens, yet, since the declaration of war was known in Liverpool, at the time of the shipment, the Claimants are to be considered as having been engaged in a hostile trade, which gives the property an enemy character, and subjects it to condemnation. The shippers on this supposition, must be looked upon as the agents of the Claimants, and the acts of agents, are, in law, the acts of their principals,

PINKNEY, contra, for the Claimants.

If the title of the Claimants be good in equity, it is sufficient; but it is good at law, as well as in equity.

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In examining the several claims, I shall follow the order which has been pursued by the counsel for the captors.

First, as to the claim of W. and J. Wilkins. The invoice and bill of parcels show the purchase by the Clai. mants. The bill of parcels is always good evidence, in an action on a policy, to show interest. The invoice corresponds with the bill of parcels, and is not contradicted by the bill of lading. Leich's letter to Harris speaks of the goods as being “ for Messrs. W. and J. Wilkins." These circumstances are strongly in our faovor. It has been urged, however, on the other side, that the property of the goods could not have been in the Claimants at the time of capture, because, 1.st. There was a condition of payment, without complying with which, the goods were not to be delivered; and 2d, because there was a power vested in Harris, to keep back the property, in case of the insolvency of the Wilkins's. The first objection is founded on an error in fact. The objection, if applicable to the Claimants of the other parta

MACK.

of the cargo is not so here. It appears, indeed, in some MERRI- part of the evidence, that an inducement to prompt pay.

ment was held out to the Wilkins's, viz. an offer to allow seven per cent, discount for prompt payment; but there was no express condition of payment. The second objection, viz. that Harris was empowered to keep back the goods, in case of the insolvency of the Claimants, is easily answered. Insolvency of the parties was the sole ground on which Harris could retain the goods ; but this is only the same power which the shipper himself would have had by the general law in maritime cases, if he had consigned the goods directly to the Wil. kins's. It is the general law, in case of the insolvency of the consignee, that the shipper may stop the goods in transitu in itinere, although purchased in England, if the purchase was on credit. The intervention of Harris, in this case, merely gives a facility to the right which the shippers before possessed. * Rob. 21, 25. The Josephine.

It is also urged, that the shippers themselves, in their letters, have denominated the goods in question, British property, and expressed an apprehension that it would not be protected by the American government, and have therefore suggested to Harris, that he could swear they were his. This objection possesses little weight. A mere attempt to conceal belligerent property only deprives the party of the benefit of further proof, but is not a ground of confiscation. 4 Rob. 161, 195. The Madanna delle Gracie.Gregory's case.

2d. As to the claim of M'Kean and Woodland. Two objections to this claim, arising from the letter of Baily, Eaton and Brown to M'Kean, have been urged by the captors.

1st. The consignment to Holladay.

2d. The expectation of the shippers that M'Kean and Woodland would pay cash.

The consignment to Holladay needs no farther explanation than is to be found in the letter which states the fact. The shippers, having heard that the partnership of M'Kean and Woodland was dissolved, were uncertain to which of them the consignment ought to be made, and

therefore determined to consign the goods to Holladay. But the property vested in M'Kean and Woodland, notwithstanding this intermediate consignment. In a Court of prize, such intermediate consignment is not considered as altering, in any degree, the nature of the case.

THE MERRI MACK.

2d. Though the letter from the shippers requests an immediate cash payment, there is no express condition to that effect: there is merely an appeal to the justice and honor of the Claimants.

An additional proof that the property was in the Claimants, is, that it was insured for them and not for the shippers.

It appears that all the bills of lading, except that for W. and J. Wilkins, express the shi; ments to have been made on account and risk of American citizens generally. The reason for this general mode of expression was the uncertainty of the shippers respecting the dissolution of the partnership.

3d and 4th. We now come to the claims of Kimmel and Albert, and Browning & Co. which depending on precisely the same principle, will be examined together.

In these two cases only, is there an absolute condition of payment. But the goods had been regularly ordered by the Claimants, long before they were shipped. They were finally shipped for them, and in pursuance of their orders. They were delivered to the master of a general ship. The invoice, bill of lading and letters, all concur in showing property in the Claimants. The legal property vested in them by the delivery of the goods to the master. The shipper, having delivered them to the master, was functus officio, and could not thereafter stop the goods on any ground but the insolvency of the consignee, which is the only case of stoppage in transitu authorized by the common law or the law maritime. 1 Rob. 181, 219. The Aurora. (Conversation between sir W. Scott and Dr. Lawrence.) 6 Rob. 325,6,7. The Constantia.

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Again. Can a captor divest the eventual rights of citizens, or does he take the property subject to the conditions to which it would be subject in the hands of the consignor or his agent? We contend for the latter doc

THE

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trine. The rights of the citizen become absolute upon MERRI- his complying with those conditions. In the present

case, if the goods had arrived at their port of destination without capture, the title to them would have become absolute in Kimmel and Albert, upon payinent to the consignor of the amount required: And, as the captor, according to our doctrine, does but stand in the place of the consignor, we contend that the property will become equally absolute in the Claimants upon making the same payment to him.

We do not admit the doctrine, that property cannot, upon the high seas, pass in transitu, so as to defeat the captors. Suppose it had been agreed that the property should change after it had passed a certain degree of longitude; would not the agreement be carried into effect, upon that degree of longitude being past? But it is not now necessary to contend for this doctrine, because the property in the present case, was vested in the Claimants, upon the shipment, liable, however, to be divested upon a condition.

There is manifest inconsistency in the English prize law. A belligerent lien will be condemned, but a neutral lien will not be protected : neutral property may become belligerent in transitu, but belligerent property cannot becomo neutral. This Court will adopt the reason of the rule, but not the rule itself.

HARPER, in reply.

In this case, there was no transfer of either an equitable or legal right. In the case of W. and J. Wilkins, the delivery of the goods was only to Harris; or to the master of the ship, who, by undertaking to deliver them to Harris, became his agent, and not the agent of the Wilkins's. So with regard to the invoice, bill of lading and bill of parcels ; they were all delivered, not to the Wilkins's, but to Harris or his agent, the master. No evidence of the title of W. and J. Wilkins was put in a course to reach them, but through the agency of Harris, who was not to deliver it at all, but in a certain event. The goods, although purchased by order of the Claimants, were not delivered to them. The Claimants could not have maintained an action for them, either at law or in equity.

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