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the shippers. This may be true, and yet it does not MERRI- prove enough. Had the sbipment been direct to the MACK. Claimants, and insurance omitted contrary to order or

custom, the shippers would have been equally liable, and yet the property would not have been subject to capture. It is enough for the purposes of the Claimants, that the property in the goods had been transferred to them, independently of the control of the shipper or his agent, except so far as the right to stop in transitu interfered. And such was the situation of the rights of the parties in this case. The goods ordered by the Claimants were shipped to an agent for their use, subject only to a right which unquestionably, under any circumstances, existed in the shippers. In their letter to the Claimants, they inclose a bill of parcels, by way of invoice, containing a positive acknowledgment of the sale to them; and the letter itself, as well as that to Harris, speaks of the goods expressly as their goods. The immediate consignee could, therefore, only be considered as the bailee of the Claimants. Nor does it appear that a tender of the money would have been necessary to entitle them to receive the goods of Harris, as, in the letter to Harris, it is acknowledged to be a sale on credit, and particular discounts offered as an inducement for an early payment.

Indeed, there are words in the letter to the direct consignee, which amount to a positive declaration that the shipments were not on his account nor on that of the shippers, but for the use and benefit of others.' «I shall send you, and our friends through your hands, all the goods prepared for your market. By connecting these words, with the bills of lading, the result is, that, although the direct consignee was entitled to demand the goods of the captain, yet it was not to his own use, but to the use of the several persons on whose account they were shipped.

Decree affirmed.

STORY, J. delivered the following separate opinion, as to the claim of W. and J. Wilkins.

I cannot concur in the opinion of the Court, just delivered, as to the claim of the Messrs. Wilkins. It is true that the goods were purchased pursuant to the orders of Messrs. Wilkins; but I do not think that the

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MACK.

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property, by the mere purchase, became vested in them;
and the usage and course of trade is generally otherwise. MERRI-
The purchase was made with the money of the shipper :
and, until a delivery, actual or constructive, to the
Messrs. Wilkins, the propriety thereof remained com-
pletely in the shipper. The goods were also shipped as
the property of the shipper, consigned to the agent of the
shipper, and not to the agent of the Messrs. Wilkins, to
be delivered only in case of the consignee's being satis-
fied of their perfect solvency. It is true that the bill of
`lading purports that the goods are shipped on account
and risk of the consignee; but the confidential letters
explain the transaction, and shew that the shipment was
so made as a cover against belligerent risks; and that
the property was not intended to be changed from the
British shipper, in its transit. The delivery, then, of
the goods on board of a general ship, was no delivery to
the Messrs. Wilkins : It was not even a delivery which
vested the property of the goods, in the consignee. The
legal property and possession thereof still remained in
the shippers; and if the goods had actually come to the
hands of Mr. Harris, his possession would have been but
a continuation of the possession of the shipper. In con-
templation of law, the goods were as much under the
control and possession of the shipper, as if he had been
on board the vessel during the voyage, or had shipped
them in his own name. If they had been lost during the
voyage, the loss would have been bis. He had not a
mere right of stoppage in transitu in case of insolvency,
for that can be exercised only where the property by the
shipment is vested in the consignee for his own use; but
he had a perfect right of countermand in all cases what-
ever. He might sell the property, give it a new direc-
tion, control its delivery, and, indeed, exercise all the
rights of full dominion and propriety. It seems to me,
that if the Messrs. Wilkins had neither a jus ad rem,
nor a jus in re, and the latter only is recognized in prize
Courts, they could not, by subsequent acts, overreach
the legal rights of the captors. At the time of the ship-
ment and capture, it was, in my view, enemy property
liable to condemnation, having no neutral or American
onus attached to it. It was subject to the legal claims
of the creditors of the shipper ; and nothing existed in
the Messrs. Wilkins but a mere spes occupandi or, as the
common law phrases it, a mere possibility, which attached

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neither to the substance nor the form of the thing. Upon MERRI- what ground, then, if I am right as to the ownership of MACK. the goods, can the claim be maintained? The right of

capture acts upon the proprietary interest of the thing captured, at the time of capture. It is not affected by the secret liens, or private engagements of the parties. It repudiates even the strong claim of a bottomry bond, because it is not a jus in re. Can, then, a mere possibility be of more consideration in a Court of prize? The absence of all authority to this effect, and the strong and emphatic language of all the cases as to secret liens, speak as powerfully as the most direct and pointed decisions against it.

There is a case cited by the Court in the Aurora, Rob. 218, where property was shipped by a merchant in Holland to A. a person in America, by order of B. and per account of B. but with directions to A. not to deliver it unless satisfaction should be given for the payment; and it was held as good prize on the ground that the property still remained in the enemy shipper. This case I think strongly in point; and the manner in which Lawrence attempted to distinguish it from the case then on trial, shews a full concurrence in its correctness. The reasoning of the Court in the Aurora itself, and in the Marianna, 6 Rob. 22, are also illustrative of the general doctrine.

On the whole, I consider that, by the doctrine of the common and the prize law, these goods were, at the time of capture, enemy property, and that the claim of the Messrs. Wilkins, ought to be rejected, and in this opinion I have the concurrence of TWO* of my brethren.

Monday, March 14th.

HARPER, suggested diminution of the record in the case of W. and J. Wilkins, and prayed the Court to grant a writ of certiorari to the Court below; but the Court refused, the case having been argued and decided.

Judges WASHINGTON and ToD.

THE FRANCES, BOYER, MASTER.

(Thompson and al. Claimants.)

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THIS was an appeal from the sentence of the United A naturalized States' Circuit Court for the district of Rhode Island. citizen, who,

in time of

peace, returns The facts were as follow:

to his native country for the

purpose of War was declared by the United States against trade, but with Great Britain on the 18th of June, 1812.

the intention of returning

again to his The ship Frances, having on board a cargo of goods adopted counof British manufacture, consigned to various persons

try, conin

tinuing in the United States, sailed from Greenoch, in Scotland, the former a on the 19th of July, in the same year, for New York. year after the On the 28th day of August following, she was captured the existence by the Yankee privateer, and carried into the district of war beof Rhode Island, where the cargo was libelled as eneiny countries, for

tween the iwo property.

the purpose of winding up a

complicated Robert and James Thompson and William Steele, business, and naturalized citizens of the United States, claimed a engaging in no considerable part of this cargo as their own property ; cial transacand also claimed 130 packages, another part of the tions whatever same cargo, as being owned by them jointly with Bri

my, and actu. tish subjects, or as having a lien upon the property in ally returning

to his adopted consequence of advances made upon the consignment.

country in a

little more These goods were all consigned by James Thompson, than a year a naturalized citizen of the United States, residing in knowledge of Scotland, to William Steele, a citizen of the United the war; is to be

considered States, carrying on the business of the concern in New

having gained York.

a domiciliu

his native coun. All the goods claimed, except the 130 packages, were goods, captur

try and his incontestibly the property of the Claimants; and, un ed after the

war, liable to the trial, restoration of two thirds was decreed to Ro

condemnation. bert Thompson and William Steele, residents in the Goods appearUnited States; in which decree the captors acquiesced.

ing by the ships

papers to be a The remaining third, which belonged to James Thomp- consignment son, who resided in Scotland, was condemned: and from alien ene

mies to Amerfrom this sentence he has appealed to this Court.

ican mer

as

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CLAI

The 130 packages were also condemned as enemy FRANCES, property; and from this sentence the Claimants have (THOMP- appealed to this Court; but, having received more full SON & AL. information than they originally possessed respecting

the ownership of these goods, they now abandon their MANTS,) claim as to this property, except as to 66 boxes, of

BOYER, which they still claim to hold a moiety; the other moieMASTER. ty being acknowledged to be the property of Messrs.

Dalgleish and Frame, British subjects. chants, condemned in toto as prize, al

A claim to all the above mentioned goods was also though fur. interposed by the United States, for a violation of the ther proof was offered that

non-intercourse laws: which claim was rejected in the American Circuit Court, and an appeal taken to the Supreme merchants

Court. were jointly interested, and that they had James Thompson, as appeared from the evidence, a lien upon the goods, in con- was a native of Scotland, and came to the United States sequence of ad- in the year 1795, where he resided, carrying on trade yances made and commerce, till the year 1801. In 1797 he was naFurther proof turalized. In the year 1801 he went to France, on the on these points commercial business of his house, and, some time afterrefused.

wards, passed over to England, where he was employed in making purchases for and shipments to his house. In the year 1803 he settled in Glasgow, where he continued doing that part of the business of the partnership which was to be transacted in Great Britain, until tbe declaration of war. After the knowledge of that event, he transacted no commercial business whatever, and was exclusively employed in arranging his affairs in such manner as would enable him to return to the United States. This being accomplished, he, in August, 1813, engaged a passage on board the cartel ship the Robert Burns, about to sail froio Liverpool to New York, but was stopped by the orders of government. He then passed over to Ireland, and privately embarked for the United States, where he arrived in November last. Several affidavits were taken to show that he always considered the United States as his permanent place of residence, and that he uniformly expressed his determination to return. His letters manifested the same intention. It also appeared that his business was complicated, and required his attention after he ceased to engage in new adventures; but it did not appear that he had performed any act which could be considered as

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