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THE MERRIMACK.

M.Kean and Woodland's case is still stronger against them. The business of that concern was not continued by any person. They have become insolvent. Holladay has the absolute control over the goods. He was to make arrangements with the Claimants or with MóKean alone, and was to require cash.

Saturday, March 12th. Absent....LIVINGSTON, J.

MARSHALL, Ch. J.

After stating the facts relating to the several claims in this case, delivered the following opinion of the Court, as to the claims of M.Kean and Woodland, Kimmel and Albert, and John H. Browning & Co.

1. As to the claim of M.Kean and Woodland.

The question of property, in this case, depends on certain letters written by Baily, Eaton and Brown, which were found on board the captured vessel. A letter of the 11th of July, 1812, addressed to Samuel M.Kean, shows in the clearest manner, that the property in dispute was purchased and shipped for M•Kean and Woodland, in pursuance of their orders ; and accounts for assigning it to Mr. Holladay.

There is nothing in the cause which can throw the slightest suspicion on the fairness of this transaction. It inquestionably is, what, on the face of these letters, it purports to be, a purchase for M.Kean and Woodland, made in pursuance of their orders, and shipped for them to Robert Holladay, because, in the moment of shipment, information was received that their partnership was dissolved, and the shipper had no instructions in what manner to direct to them. In this situation, he considered himself as acting most certainly for their advantage by addressing the goods to an agent resid

ing in the same town with M.Kean and Woodland, who I should receive them to their use. In such a case, the

Court is of opinion that the property was vested in M.Kean and Woodland, and is, consequently, not liable to condemnation as enemy property.

The sentence is affirmed.

THE

2. As to the claim of Kimmel and Albert.

MERRI-
MACK.

From their letter it is apparent that, in the event of war, Baily, Eaton and Baily, reserved to then selves that power which ownership gives over goods, and instructed their agent, M.Kean, in what manner that power was to be exercised. There being no letter addressed to.Kimmel and Albert, but under cover to M•Kean, it is apparent that they were to know nothing of the shipment, unless, in the opinion of M.Kean, it should be prudent to make the communication ; and even then, the property was to become theirs, not un. der the original contract, but under a new.contract to be made with M•Kean. The delivery on board the ship was a delivery to M.Kean, not absolutely for Kimmel and Albert, but for them provided they acceded to new and distinct propositions made by Baily, Eaton and Baily. In such a case, no change of property could take place till Kimmel and Albert should accede to these new propositions; and the capture having taken place before the contract was complete, the goods must be considered as enemy property,

The sentence is reversed, and the claim dismissed.

3. The claim of John H. Browning & Co.

This claim stands on precisely the same principles with that of Kimmel and Albert. The documentary evidence is in effect the same, and was enclosed in the same letter from Baily, Eaton and Baily to Samuel M.Kean. The claim therefore must be dismissed.

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JOHNSON, J. delivered the opinion of the majority of the Court, as to the claim of W. and J. Wilkins, as follows:

The points of distinction between this case and that of M Kean and Woodland, unfavorable to these Claimants, are the following:

1. That Harris, the direct consignee, had a control given him over the goods, which authorized him, had

he thought proper, to refuse to deliver them over to the Wilkins's.

THE MERRIMACK.

2. Thai Harris had also a power, under certain circumstances, to make them his own.

3. That, in the letters both to the Wilkins's and Harris, the consignor alleges as his reason for making the shipment through Harris, his fears that this government would not protect British property; thereby, as is contended, acknowledging this property to be British.

On the other hand, it is a circnmstance favorable to this claim, that the original bills of parcels were made directly to the Claimants, and were sent along with the shipment, as a substitute for an invoice.

It is assumed as a postulate, that a direct consignment on account of the consignee, made in pursuance of his orders, is not subject to condemnation as prize of war; and that it is immaterial whether it be purchased for cash or credit; or insured in the enemy's country or elsewhere.

It will, then, be enough to show that every beneficial interest which such a shipment would vést in the consignee, was 'vested in the Claimants in this case.

The first difficulty arises from the circumstance that the bill of lading was made out to Harris, and not to the Wilkins's, whereby the captain of the ship became bound to deliver them to Harris or his assigns.

Upon a fair view of the whole transaction, this distinction will be found rather to be formal than real; and that it produces no difference in the state of right between these parties.

The interest vested in the consignee by the delivery to the captain, is not absolute to all purposes. So far as relates to the right of stoppage in transitu, it continues subject to the control of the consignor, and may be reduced by him into possession, 'before actual delivery; or the authority of the captain to deliver them VOL. VIIT.

TUE

according to the original bills of lading, may be counMERRI- termanded, and another destination given them.

MACK

Upon comparing all the circumstances of this case, it will be found that the transaction was so arranged as to produce no other change in the rights of the parties, than to put it in Harris's power to exercise this right of stoppage in transitu, in case of the insolvency of the Wilkins's.

The bill of lading is made out to Harris, which gave him the right to demand the goods of the captain.

But the invoice, which has the additional strength of a bill of parcels, is made out to the Claimants, which gave them the right to demand the goods of Harris.

Both in the letter to Harris and to the Wilkins's, the shipment is declared to be on account of the latter; and, in the letter to the former, the shipper goes into a detail of his reasons for giving the Claimants so large a credit.

Thus these papers, taken together, place the interest of the Claimants on the same footing as if the bill of Jading had been made out to Harris for the use of the Wilkins's; and in that case, there could have been little doubt that the claim must be sustained.

If the invoice, although made out to the Claimants, had been inclosed to the direct consignee, it would have furnished a strong argument in favor of the captor. But here, the evidence of right is placed in the Claimants' own hands; thereby acknowledging their right in the goods shipped, and furnishing them with the ineans of asserting it. Thus the shipper could never have denied the rights of the Claimants in this case; for he had furnished the most direct and conclusiye evidence against himself.

But it is asserted that Harris had it in his power to make these goods his own, in defiance of the will of the Claimants.

If this were the fact, it would only show that, in

either view of the alternative, it was a shipment on American account, and that the shipper had parted with all his interest.

THE MERRI, MACK.

But the fact is not so: and in answering this argument, we answer the remaining one also.

The shipper knew what he was about. War was already probably declared, and he was aware of the crash of mercantile credit which generally follows on such an event. He also knew that, in case of asserting his right of stoppage in transitu, the property reverted and became British; in which case, as he expresses himself, the property might be subjected to seizure, as enemy's property.

With these considerations on his mind, he makes out the bill of lading to Harris, and informs him that his object is to enable him to keep the goods back in case of an alteration in the circumstances of the Claimants : and in this case only is the hint given him that he may claim them as his own. It is contended, that he acknowledges, in his letter to the Claimants, that the property is British. But this is an error in fact. It was necessary to assign some reason or some excuse for not having the bills of lading made out to the Claimants themselves. And for this reason, he urges an apprehension that our government would not protect British property. But this reason could only bc applicable in the event of a stoppage in transitu; as a direct shipment to the Claimants would have left no room for such an apprehension. In the letter, also, to Harris, it is said, is contained an acknowledgment that the property is British. This, also, is founded in mistake; for the letter to Harris only communicates the reason which had been assigned in the other letter, for having the bill of lading made out as it was. But suppose the passage in the letter to the Claimants, on this subject, had been full and explicit to the declaration of an opinion that the property continued British, although shipped on American account; yet this would have been but an expression of an erroneous opinion, and certainly ought not, as far as the interests of the Claimants are concerned, to have an influence on the decision of this Court. But it is asserted that the goods continued, on the whole voyage at the risk of

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