CLAI

act is directed to be by the collectors; the action for THE the recovery of the penalties and forfeitures arising FRANCES, under the act is to be debt, and the proceedings gene- (THOMPrally are to be in conformity with the act of 2d March, SON & AL 1799, to regulate the collection of duties on imports and tonnage. But where a statute gives a particular form MANTS,) of action, that form must be pursued. Act of congress BOYER, of March 1st, 1809, § 8, and 18. (Laws U. S. vol. 9, p. MASTER. 248, 254.) Act of March 2d, 1799, § 67, 68, 69, 88, 91. (Laws U. S. vol. 4, p. 389, 390, 427, 431. Abr. vol. 4, p. 654, tit. Statute, K.

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

Bac

MARSHALL, Ch. J. after stating the facts of the case, delivered the opinion of the Court as follows:

The rights of James Thompson depend entirely on his national commercial character; which is decided by the opinion given in the case of the Venus, (ante p. 253.)

The sentence of condemnation pronounced in the Circuit Court, as to James Thompson's claim, is affirmed.

The original evidence is very strong to prove that the shipment made by Dalgleish and Frame was entirely a consignment. The whole letter of the 13th of July confirms this idea. It is scarcely credible that the property of Dalgleish and Frame would have been. placed on the list of consignments without a note upon it, had it been shipped on joint account. The hurry of business will not excuse or account for this omission. The proposition of Dalgleish and Frame is stated to have been made on the 27th of June, and to have been accepted on the 1st of July. The letters of Thompson to Steele are written on the 13th and 17th of July, when this shipment is treated as being altogether a consignment. The hurry could not have been such as to account for a mis-statement of the fact. There is, too, something mysterious in the manner in which the papers, offered as additional proof, reached Mr. Steele. That they should not have been accompanied by a letter, nor bear any marks of coming from abroad, is singular.

THE Further proof is not admitted, and the sentence is afFRANCES, firmed.

(THOMPSON & AL.

CLAI

Wednesday, March 16th. Absent....MARSHALL, Oh. J.

MANTS,) WASHINGTON, J. as to the opinion of the Court on BOYER, the question of lien, referred to the opinion delivered in MASTER. the case of the Frances, (Irvin's claim, post. p. which he said was precisely within the principle of the present case.

THE FRANCES, 'BOYER, MASTER,

(Graham's claim.)

Where the

duced on the

THIS case like the preceding, was an appeal from affidavits pro- the district Court of Rhode Island and the claim of order for fur- John Graham, the Appellant, was to certain other goods ther proof are by the same ship, the Frances, captured and carried positive-but their credibili- into Rhode Island, as stated in the case referred to, ty impaired by by the Yankee privateer.

the non-pro

duction of letters mentioned in the affidavits, a second order for further proof will

be allowed in the appellate Court.

HARPER, for Claimant.

PINKNEY and DEXTER, for the Captors.

The material facts of the case, and the substance of the argument on both sides, are stated in the following opinion of the Court,* delivered March 12th, by

MARSHALL, Ch. J.

John Graham, a merchant of New York, claimed sundry parcels of goods shipped on board the Frances, as his sole property.

The goods were shipped by William Graham and brothers, merchants of Glasgow, on account and risk of John Graham, merchant, of New York. There are

* LIVINGSTON, J. was absent when this opinion was delivered.

THE

two bills of lading, each filled up with the name of John Graham. There are also two invoices, each headed FRANCES, with the name of William Graham and brothers as (GRAHAM' shippers, and stating the goods to be shipped on account CLAIM,) and risk of John Graham. The first of these invoices

BOYER,

is marked in the margin thus, W. G. I. P. and the MASTER. other thus, [G.] There were also two lists of goods. The first headed, "List of goods shipped by the Frances, for Messrs. John Graham & Co. New York." This list is marked W. GI. P. The other is headed, "List of goods shipped by the Frances, for Messrs. Peter Graham & Co. Philadelphia." These goods are accompanied by two letters dated the 15th and 16th of July, signed William Graham and brothers, the first addressed to Messrs. John Graham & Co. and the last to Messrs. Peter Graham & Co. The letter to John Graham & Co. treats of their trade generally, and contains only the following allusion to this shipment: "You "have herewith the ship Fanny's accounts, to which "refer-also invoice of sundry goods per Frances"we hope they may go to a good market. We expect "you will have about one hundred packages of English "goods. There will be somewhat more to Philadelphia.”

The letter to Peter Graham & Co. is also a general letter on the subject of their trade. It contains the following passage respecting the shipments by the Fran"We have shipped by Frances a few goods well ❝ selected—we could not get almost any cluster seeds."

ces:

The Circuit Judge directed the cause to stand for further proof.

It appears from the affidavit of John Graham, that in the month of January, in the year 1809, he entered into a limited partnership with his brothers, William Graham and Peter Graham, who, as well as himself, are naturalized citizens of the United States. The business was to be conducted at New York by himself, under the name of John Graham & Co.-at Philadelphia, by Peter Graham, under the name of Peter Graham & Co. and at Glasgow, by William Graham, under the name of William Graham and brothers. That, from the commencement of the partnership, he has been in the constant habit of carrying on extensive

THE business, with the knowledge of his partners, on his FRANCES, private account, and also in connexion with others. (GRAHAM'S That the investment and disposal of the funds of the CLAIM,) deponent, together with the management of the merBOYER, cantile concerns of the firms composed as aforesaid, MASTER. and the commission business, were the principal if not

the sole business of William Graham and brothers at Glasgow. That, from the intimate knowlede they possessed of each others affairs, and in consequence of their connexion as brothers, the distinction between his firm and his private character was not always preserved. It was the less attended to, because the affairs of the company and his individual concerns were frequently the subjects of the same letter, and it became the more usual to address him by the style of the firm, because there are several other persons of the same name in New York. He adds, that in making shipments on the sole account of the deponent, William Graham has been in the habit of assorting the whole into invoices of small quantities, calculated to suit the generality of purchasers in the New York market, and also that the goods in any one of the said invoices might be sold entire, or transshipped to Philadelphia or any other market, with the original invoice accompanying the same, as such original invoice would inspire more confidence in the buyers. This circumstance occasioned the lists of property shipped by the Frances, and one of them to be addressed to Peter Graham and Co. He swears in the most positive and precise terms, that the property is entirely his own, and was purchased with his private funds in the hands of William Graham.

William Black deposes, that he has been long and intimately acquainted with John Graham, who is a man of fortune and character, and has been in the habit of transacting much of his own business in the said Graham's counting house. That, from his knowledge of the affairs of the said Graham, he verily believes that the said Graham, both before and since the war, has been in the habit of doing business on his private account, and has received many shipments in which neither of his brothers were interested. He has been concerned with the deponent as part owner of vessels in which the deponent believes that neither William por Peter Graham held any share.

Isaac Belt and David Dunham, merchants of New THE York, swear to facts similar to those stated by William FRANCES, Black.

(GRAHAM'S (CLAIM,

Charles Graham, of a different family from the Clai- BOYer, mant, swears that in the year 1811, there were, accord- MASTER. ing to the dispensary, six persons of the name of John Graham in New York, one of whom was the deponents father; and that mistakes were frequently made respecting each other's letters which came through the post-office.

William Hill, principal clerk of William Graham and brothers, deposes to the different concerns and to the nature of the business transacted by William Graham and brothers, as stated in the affidavit of John Graham. That they had under their care ships and vessels in which John Graham alone was interested. That since an early period in the year 1811, the concern of William Graham and brothers have not shipped any goods whatever, for or on account of the said co-partnership, to either of their said establishments, or in any other manner whatsoever. That vessels continued to arrive, particularly the Trident, the Fanny, and the Cuba, to the charge of the said William Graham and brothers, for the account and risk of John Graham, in which ships and cargoes the said co-partnership or the said William Graham had no share or interest whatsoever. The deponent has seen sundry letters from the said John Graham to the said William Graham and brothers, to invest the monies arising from the freight and cargoes of those ships, in goods, in behalf of him, the said John Graham, so soon as the British orders in council should be revoked; and, until then, to place the amount to his private credit in the books of William Graham and brothers, which was done by the deponent as clerk. That this money was invested in the goods shipped by the Frances and other vessels, which were shipped on the sole account of John Graham, and were so entered on the books, by the instructions of William Graham. He states the practice of dividing shipments into small invoices, as is stated in the affidavit of John Graham.

Peter Graham swears that he has not, and never had, any interest in the goods shipped by the Frances. That