THE John Graham has been in the habit of transacting busiFRANCES, ness on his own account, with the knowledge of his (GRAHAM' partners, and has frequently consigned his separate CLAIM,) goods to Peter Graham & Co.

BOYER, MASTER.

William N. Steele, clerk of Peter Graham, deposes to the same facts; and founds his belief that Peter Graham had no interest in the goods shipped by the Frances, on his knowledge of the business of the house.

William Graham states in detail, with great explicitness, the circumstances narrated in the affidavits of John Graham and of William Hill, his principal clerk, and avers most solemnly that the goods shipped by the Frances were the sole property of John Graham.

The Court below directed restitution of two thirds of the cargo, as being the property of John and Peter Grahamn, and condemned one third, as being the property of William Graham. From this sentence of condemnation John Graham has appealed; and from só much of the sentence as directs a restitution of one third as the property of Peter Graliam, the captors have appealed.

It is certainly a rule in prize Courts dictated by good sense, and calculated to promote the purposes of justice, that letters accompanying the cargo, written in good faith, in the prosecution of a fair and honest business, should have great influence in ascertaining the real proprietors of it. The letters on board the Frances are of this description. They are such as would be written if the goods were really the property of the company; but such as could scarcely have been written if the goods were the sole property of John Graham. Had they been his sole property, it must have happened that some expression would have been found in the letters indicating the fact. Men who write carelessly and without design, may not be very explicit; but it rarely` happens that they entirely conceal the truth. There will be some allusion to it.

If the goods were the sole property of John Graham, why address a letter to Peter Graham & Co. ? The affi- davits account rationally enough for making up separate invoices; but addressing a letter to Peter Graham

& Co. at Philadelphia, by a vessel destined for New THE York, has very much the appearance of a shipment des- FRANCES, tined for the company at that place, and not for John (GRAHAM's Graham, of New York. The expressions of that letter CLAIM,) favor the same idea. "We have shipped you, by Fran- BOYER, ces, a few goods well selected." These cannot well be MASTER. the goods of John Graham. The language is surely not such as would be used in that state of things. could not get almost any cluster seeds." These expressions have a necessary reference to some letter of orders from Peter Graham, mentioning cluster seeds among the articles directed to be shipped.

"We

The affidavits produced on the order for further proof, are too positive to be disregarded without considérable reluctance and hesitation. There are, however, certain rules of evidence, the authority of which is admitted in all Courts. One of these is, that if a written paper be referred to, which paper is in the power of the party, it ought to be produced. The affidavits of William Graham and of Wil iam Hill state expressly that letters had been received from John Graham, directing the disposition of cargoes shipped from America on his own account, and ordering the proceeds to be invested in British manufactures, also on his own account, so soon as the British orders in council should be repealed. Why are not these letters produced? It is impossible not to perceive their necessity. Mr. John Graham must have copied these letters into his letter book. Why has he not furnished some evidence of this fact. His letters must have been answered by William Graham more explicitly than in that which was found on board the Frances. Why is no one of those letters produced? It is impossible to account for the fact that no one of these letters is an exhibit in the cause. The Court feels itself bound, judging on this evidence according to the rules of law, to consider the goods as the property of the company. But it is urged, on the part of the Claimant, that if permitted to give further proof, he will produce the correspondence and such other proof as will be entirely satisfactory to the Court. Several circumstances exist in this cause to induce the Court to allow still further time for the production of such further evidence as may place the transaction beyond any doubt. The cause is ordered to stand for further proof. 45

VOL. VIII.

A case of further proof.

THE FRANCES, BOYER, MASTER.

(Dunham and Randolph's claim. )

THIS is another case of goods by the Frances, cap

Goods, ship- tured by the Yankee, and condemned in the Circuit ped by a Bri- Court of Rhode Island, brought up to this Court on

tish to an A

merican house appeal.

(partly in con formity with orders, and

Messrs. Dunham and Randolph, merchants of New partly without York, claimed three bales and nineteen boxes of goods orders,) who had an option shipped by Alexander Thompson of Glasgow, a British to accept or re- subject, and consigned to Dunham and Randolph. The ject the whole bili of lading is in their names, and the invoice purports limited time, to be on their account and risk. A letter from Thompremain the son to Dunham and Randolph, dated Glasgow, 11th July, property of the shippers until 1812, after describing the goods, and the labor he had the elect on be employed in the business, and stating that the goods

invoice in a

made to ac

cept them.

were sent partly in the Fanny and partly in the Frances, says, "I have exceeded in some articles, and have sent "you others not ordered." "I'leave it with yourselves "to take the whole of the two shipments, or none at all, "just as you please. If you do not wish them, I will thank you to hand the invoices and letters over to "Messrs. Falconer & Co. I think twenty-four hours "will allow you ample opportunity for you to make up your minds on this point; and if you do not hand them "over within that time, I will of course, consider that "you take the whole."

66

On the 15th of July, Alexander Thompson again wrote to Dunham and Randolph a letter in which he mentions the information that a bill declaring war had passed the house of representatives. He then adds, "considering "the circumstances of the times, I thought it best to in"form Messrs. Falconer, Jackson & Co. fully of the "conditions on which I have shipped you the goods by "the Fanny and Frances,"

In a letter to Messrs. Falconer, Jackson & Co. of the same date, he explains, in full, the proposition he had made to Dunham and Randolph, and directs how those gentlemen are to act for him, should Dunham and Randolph reject the consignment.

This property was condemned in the Courts below, and from the sentence of condemnation the Claimants appealed to this Court.

PINKNEY, for the Appellants.

THE FRANCES, (DURHAM & RANDOLPH'S

CLAIM,)

This is a mere question of fact as to property. BOYER, Were or were not the goods the property of the enemy? MASTER, We contend, that they were not. All the documentary evidence shows the property to belong to Dunham and Randolph, The condition mentioned in Thompson's letter of 11th July, was a condition subsequent. The property vested in the Claimants, liable to be divested, if rejected by them within twenty-fours after receiving the letter.

The greater part of the goods, if not the whole, was shipped by order of the Claimants, long before the sailing of the vessel. The delivery to the master of the ship was an execution of the order. The shipper had no longer any control over the property, except, in case of the insolvency of the consignees, in which event he might stop it in transitu

Every circumstance connected with the transaction appears to be perfectly fair; and if the evidence now before the Court is not sufficient to support the claim of the Appellants, it is a case for further proof. The Claimants had accepted the shipment by the Fanny before the capture of the Frances, and thereby rendered certain what was before optional. They thereby bound themselves to to take the shipment by the Frances,

HUNTER, contra.

The goods in question were not shipped according to order, as appears by Thompson's letter of 11th July. They belonged to the shipper until the consignees had elected to take them; and they could not make their election before the arrival of the Frances.

At whose risk were the goods while at sea? Thompson had no power to impose the risk on the Claimants." If the goods had arrived at Boston, they might have been attached as the property of the shipper. If attach

THE ed as the property of the Claimants, they might have FRANCES, said the goods were not their property or if they had (DURHAM been sued as garnishees of Thompson, they might have & RAN- said they owed him nothing. They were not bound to DOLPH's accept the goods.

CLAIM,)

BOYER, If the property, at law, belonged to Thompson, a forMASTER. tiori in a case of prize. It is a rule of prize Courts

that, in time of war, no future election shall be allowed to change the right of property at sea-in transitu. The question is, in whom is the legal estate? At whose risk were the goods passing at the time of capture? 2 Rob. 111, 133. The Packet de Bilboa.-1 Rob. 90, 107. The Danckebaar Africaan.-5 Rob. 115, 128. The Jan Frederick.-1 Rob. 283, 336. The Vrouw Margaretha, Rob. 21, 25. The Josephine.-id. 180, 218. The Aurora. d. 170, 207. The Carl Walter.-6 Rob. 337. The Carolina.-1 Rob. 243. 289. The Copenhagen.—These cases all go to prove that, during war, property cannot change in transitu.

DEXTER, same side.

In this case, there was no contract to change the property. To constitute a contract, the assent of both parties is necessary. The goods were not shipped according to the order of the Claimants, and a condition was annexed. The property never vested in the Claimants: It was only to vest in them on condition that they failed to deliver over the goods to Messrs. Falconer & Co.

PINKNEY, in reply.

The further proof which the Claimants would offer, will show that almost all the excess of goods beyond the order, was on board the Fanny. Here was a direct assignment to the Claimants. The goods were delivered to their agent, the master of the vessel. The documents were all sent to the consignees. No change of property in transitu was necessary. The property was already vested in the Claimants: and, upon its arrival, they might have asserted their right to it. So far as the goods comported with the order, the contract was