THE

certainly executed: There can be no doubt about those goods. The Claimants might have maintained trover or frances, replevin for them.

(DURHAM & RAN

This was not the sort of shipment described by sir W. DOLPH's Scott, in the cases cited. Thompson, the shipper, was a CLAIM,) naturalized citizen of the United States: This appears BOYER, in other cases before this Court; and that fact con- MASTER. stitutes part of the further proof which we wish to introduce. There was no knowledge of the war, in this case. The transaction was not shaped by the expectation of war. Thompson did not believe that war would take place, and he gives his reasons. The shipment was directed on the 11th of July. Between that and the 15th, the intelligence of the war was received.

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

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

It has been argued for the Appellants, that, by the invoice and bill of lading, and the true construction of the letter of Alexander Thompson, the property was vested in Dunham and Randolph, liable to be divested by their rejecting the consignment within twenty-four hours af-ter receiving the letters. That the condition annexed to the transfer, is subsequent, not precedent.

The Court cannot concur in this reasoning. It has been very truly urged for the captors, that to vest this property in Dunham and Randolph, a contract is necessary; and that to form a contract, the consent of two parties is indispensable. In this case, no such contract appears. Had Thompson, in execution of the orders of Dunham and Randolph, consigned to them, unconditionally, such goods as they had directed, the contract would have been complete; and the goods would, en being shipped, have become the property of Dunham and Randolph. But Thompson has not done this. With the goods which were ordered he has consigned other goods, expressly stipulating that Dunham and Randolph shall not take the goods they had ordered, unless they consent to take the whole quantity put on board both vessels. This, then, is a new proposition, on which Dunham and Ran

THE dolph are at liberty to exercise their discretion. They FRANCES, may accept or reject it; and until they do accept it, the (DURHAM property must remain in Thompson. The sentence of & RAN- condemnation, therefore, in this case, was warranted by DOLPH'S the evidence before the Circuit Court.

CLAIM,)

BOYER,

But the Claimants pray an order for further proof; MASTER. and say, that, before the capture of the Frances, the Fanny had arrived, and Dunham and Randolph had consented to take both cargoes.

This application is opposed on the principle that, were the fact even true, as alleged by the Claimants, belligerent property cannot change its character in transitu.

Reserving any opinion on the law of the case, until the facts alleged shall be substantiated, if it shall be in the power of the Claimants to substantiate them, the cause is ordered to stand for further proof.

Question of

THE FRANCES, BOYER, MASTER,

(Kennedy's claim.)

THIS was likewise a case of goods by the Frances, fact as to pro condemned in the Circuit Court of Rhode Island. They perty. were claimed by Duncan Kennedy, an American citizen, who appealed to this Court.

The case was submitted to the Court without argument.

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

MARSHALL, Ch. J. delivered the opinion of the Court as follows:

Duncan Kennedy, surviving partner of the house of George Stayley & Co. merchants of New York, claims eight boxes of merchandize, part of the cargo of the ship Frances, as his property.

A letter from James Smith to George Stayley & Co. in speaking of the goods, terms them "our goods," and does not, in any manner, indicate that they are the goods of Stayley & Co. He concludes his letter with saying, "As it is to be hoped the trade will now open, "I shall expect your instructions saying what goods "are best suited for the market.".

The bill of lading is filled up with the name of George Stayley & Co. " on account and risk as per invoice."

There are several letters from George Stayley, in Glasgow, to his father; but none of the indicate an opinion that the property of the goods was in George Stayley & Co:

The sentence, condemning these goods, must be affirmed.

DY'S CLAIM,)

BOYER,

MASTER.

THE FRANCES, BOYER, MASTER

(French's claim.)

THIS, like the former cases of the Frances, was an An intention, appeal from the United States' Circuit Court for the clearly provRhode Island district.

ed, of a consignor of goods to vest the

to effect such a

William French, the Appellant, a citizen of the right of property in the United States, claimed fourteen boxes of merchandize consignee, is shipped on board the Frances by James Auchincloss, of not sufficient Paisley, in Scotland, to A. and J. Auchincloss of New change of proYork, on their account and risk, with orders to remit perty, until the goods are rethe proceeds to the shipper for payment. The Clai-ceived by the

THE

mant alleged that the goods had been previously orderFRANCES, ed by him through A. and J. Auchincloss, to be imported (FRENCH'S on his account and risk.

CLAIM,)

BOYER, Further proof was ordered by the Court below, to MASTER. Consist of the original order for the merchandize, and all the letters and correspondence relating to it, and of consignee, or all the proofs of property in the Claimant.

some evidence

is given of his agreement to

his own ac

Under this order, the Claimant produced a letter take them on dated Baltimore, 20th February, 1812, signed by himcount: until self, and addressed to A. and J. Auchincloss, requestthat time, the ing them to order from their friends in Scotland, goods goods are at the risk of the not exceeding in value 1,000l. sterling, to be shipped so shippers; and Soon as the orders in council should be revoked. if they are enemies, the goods, if cap. tured, are good prize.

On the 20th of September, 1812, A. and J. Auchincloss wrote a letter to the Claimant, advising him of No difference the capture of the Frances with the goods, said to be though the shipped on his account, to their address, and desiring consignee him to take the necessary steps to have his property were the agent of a third per- cleared.

son who had directed him

to order the

goods, unless it appears that he actually did order them.

To these letters were added affidavits of the Claimant, tending to prove the property in him, together with an affidavit of Darius Hodson, that he forwarded the above last mentioned letter to the Claimant at Providence, by his request; and that, when he took it from the file, it was a whole sheet directed to the Claimant from New York, by J. Auchincloss, jun. ; but that, in order to save postage, he, the deponent, tore off the outside leaf, not thinking, at the time, of its being of any importance.

Upon this proof, the claim was rejected in the Court below, and the property condemned to the captors.

In this Court the cause was argued by JONES for the Appellant, and DEXTER for the captors; and on

Tuesday, the 15th of March. Absent....MARSHALL, Ch. J. WASHINGTON, J. delivered the following opinion of the Court:

This is the claim of William French to a part of the THE cargo of the Frances, shipped by James Auchincloss, of FRANCES, Paisley, in Great Britain, to A. and J. Auchincloss, of (FRENCH'S New York, on their account and risk. By the corres- CLAIM,) pondence between the consignor and consignees, which BOYER, was exhibited to the Court below, under an order for MASTER. further proof, it is somewhat doubtful whether these goods were to be sold as the property of the consignor, or of the consignees. In the letter from the former to A. Auchincloss, dated the 17th of July, 1812, he says, "You will lose no time to transmit immediately, on the "receipt of the invoice by the Fanny as well as by the "Frances, to the full amount of the invoices; as there"by, and no other way, is your credit and John's to be restored here. Also remit, as I have often told you, "to clear off your old debt; and, for God's sake, let us "have no more failing in the family. You will observe

that the goods per Fanny and Frances are principal❝ly bought upon a credit of 3, 4 and 5 months-this the consequence of failing."

In another letter of the same date, from the same to the same, he says, "By this ship, the Frances, I have "shipped you 14 boxes of different kinds of goods,

which I beg you will lose no time to dispose, as by "early remittances you will undoubtedly strengthen "your credit." In another part of this letter he says, "I beg you will lose no time to remit largely, say 3 or 4,000 pounds. Remember the old cash account with "the Paisley Banking Company." These letters, so far as they throw light upon this transaction, intimate very strongly that A. and J. Auchincloss were to dispose of these goods upon their own account, and as the purchasers of them. But to produce a change of property from the shipper to the consignee, it was essentially necessary that the goods should have been sent in consequence of some contract between the parties. by which the one agreed to sell, and the other to buy. Had the language of these letters been more explicit than it is to prove that the intention of the consignor was to vest the right of property in the consignee, it would not have been sufficient to effect such a change, until the goods were received, or some evidence given of the agreement of the consignee to take them on his own account. No order from A. and J. Auchincloss to the VOL. VIII.

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