MACK. THE the shippers. This may be true, and yet it does not MERRI- prove enough. Had the shipment been direct to the 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 THE MACK. property, by the mere purchase, became vested in them; and the usage and course of trade is generally otherwise. MERRIThe purchase was made with the money of the shipper: and, until a delivery, actual or constructive, to the Messrs. Wilkins, the propriety thereof remained completely 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 satisfied 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 contemplation 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 his. 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 whatever. He might sell the property, give it a new direction, 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 shipment 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 THE 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, 4 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 Tonn. THE FRANCES, BOYER, MASTER. (Thompson and al. Claimants.) THIS was an appeal from the sentence of the United A naturalized States' Circuit Court for the district of Rhode Island. citizen, who, The facts were as follow: War was declared by the United States Great Britain on the 18th of June, 1812. in time of peace, returns to his native country for the purpose of against trade, but with the intention of returning again to his year 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. after the knowledge of 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 enemy countries, for property. a tween the two. the purpose of winding up a complicated business, and engaging in no new commer Robert and James Thompson and William Steele, naturalized citizens of the United States, claimed 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 actutish subjects, or as having a lien upon the property in ally returning to his adopted consequence of advances made upon the consignment. country a with the eue 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 States, carrying on the business of the concern in New having gained York. considered as a domicil iu his native country-and his All the goods claimed, except the 130 packages, were goods, captur incontestibly the property of the Claimants; and, on 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 The remaining third, which belonged to James Thomp- consignment son, who resided in Scotland, was condemned: and from alien enefrom this sentence he has appealed to this Court. papers to be a mies to American mer THE 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, although fur ther proof was offered that American merchants were jointly interested, and that they had a lien upon the by them. refused. A claim to all the above mentioned goods was also interposed by the United States, for a violation of the non-intercourse laws: which claim was rejected in the Circuit Court, and an appeal taken to the Supreme Court. James Thompson, as appeared from the evidence, goods, in con- was a native of Scotland, and came to the United States sequence of ad- in the year 1793, where he resided, carrying on trade vances 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 afterwards, 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 the 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 from 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 |