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Tuesday, March 15th. Absent.... MARSHALL, Ch. J.
LIVINGSTON, J. delivered the opinion of the Court.
The Court does not understand the counsel for the Appellant as contending that there was any error in the sentence of the Circuit Court, or that any other than sentence of condemnation could have been pronounced there. It was, indeed, a very clear case, on the proceedings before that Court. But it is supposed that Mr. Bruen is entitled to an order for further proof; and that the facts which he will be able to make out, if an opportunity be afforded him, will entitle him to a restitution of the property.
Without rejecting the application on account of its being made at so late a period, the Court has looked into the proof which it is proposed to bring forward, and, on comparing it with the proof already in the cause, we are of opinion that it is totally incompetent to make out a title in the Appellant. There is not the least reason to believe that these goods were shipped in consequence of any previous orders given to Mr. Watkinson by merchants in this country, and transmitted by him to Messrs. Siddons and Johnston. On the contrary, whatever orders may have been sent to those gentlemen by Mr. Watkinson, it is most manifest that they did not, in this case, act upon them; for the ina voice and letter accompanying the shipment announce, in terms not to be misunderstood, that these goods were sent to the United States for the exclusive account and at the sole risk of the British manufacturers.
It has not escaped the notice of the Court, that not one of the gentlemen who are alleged to have given orders for these goods on Messrs. Siddons and Johnston, through Mr. Watkinson, and who all reside in the United States, appears as a Claimant for any part of them. Instead of this, we find them, or several of them, assigning their interest in this adventure, whatever it may be, to the Claimant; but for what value does not appear; and every instrument takes care to express that the property is to be recovered at the risk and ex. pense of Mr. Bruen. Thus is a total stranger to the shipment, and a mere volunteer who may not have paid
a single cent for his title, made a party Claimant: a
mode of proceeding novel at least, and well calculated PARATES. to awaken suspicions not at all favorable to his preten
sions. Whether a title to goods obtained in this way, would, under any circumstances, be sustained by a Court of prize, we will not say; but it is, in our opinion, sufficient reason, of itself, to refuse the party any opportunity to make further proof. Mr. Bruen not only does not pretend that he owned any part of these goods at or previous to the time of capture, but merely that he was the legal owner at the time of filiug his claim; and upon the affidavits now laid before the Court, as the ground of an order for further proof, it appears that this legal title was acquired in the way already mentioned; that is, by a number of persons assigning to him a chose in action, which they must have considered of no valué, or, at any rate, not worth pursuing. Such conduct can entitle the party to no favor or indulgence whatever. Upon the whole, the Court is as well satisfied with the decree of the Circuit Court, as it is with the total insufficiency of the evidence in reserve to produce any alteration in it.
The application, therefore, for further proof is rejected, and the sentence of the Circuit Court affirmed with costs.
THE MARY, STAFFORD, MASTER.
A case of with
THIS was an appeal from the sentence of the United drawing funds, and further
States? Circuit Court for the district of Rhode Island. proof.
• The following is a statement of the facts connected with the case.
General Garret Visscher, alias Fisher, a native of the state of New York, entered into the British army before the revolution, and having obtained the rank of lieutenant general, died in England, rich, intestate, and without issue, leaving a large number of relatives citizens of the state of New York, residing at or near Albany. Mr.
Nanning J. Visscher, one of the number, went to En THE gland, and met with no obstruction in obtaining letters MARY; of administration, and possessing himself of the estate to STAFFORD, the amount of 150,0001. sterling. In August, 1812, he MASTER. set himself in motion to return to the United States, and did return, leaving Mr. Harman Visger, his agent, in England, to transmit the property to the United States, for the use of those concerned. Harman Visger, finding that he could not remit to this country in the course of exchange, without great loss, invested a large sum in goods of the growth and manufacture of Great Britain, and to transmit a part of them to the United States, hired, on freight, the brig Mary, an American registered vessel belonging to J. B. Kennedy of South Carolina. The brig being at the port of London, was sent to Bristol, in July, 1812, to take on board this cargo.
She arrived off that place, according to her log-book, on the 23d of the same month. On the 30th, an embargo was laid in England, on account of the war; and, on the 1st of August, the custom house mark of stop was put on the Mary. Having been detained, some time, by the embargo, she sailed from Bristol, with the cargo on board, on or about the 15th day of August, 1812, bound to New York. Soon after she put to sea, she sprung a leak, and, on the 21st day of August, 1812, put into Waterford, in Ireland, to repair. Requiring a complete repair, her cargo was re-landed and stored in the King's store-houses, and she was repaired by the freighter, at an expense of 17001, sterling; to secure which he took from the captain a bottomry bond. On the 7th of April, 1813, the Mary sailed from Waterford; having cleared out for Newport, in Rhode Island, in order to avoid the blockade which was supposed to exist as to New York. Before sailing, a British license of the description usually denominated a Sidmouth license, was obtained for her from the king's privy council, by Mullet, Evans & Co. subjects of the king of Great Britain. The license ran in their name, and purported to be a renewal of a similar license granted on the 8th of July, 1812. She had no license from the American government. On the 23d of April, 1813, she was captured on the high seas, by the American privateer Paul Jones, and sent into Newport with a single prize master on board, the captain being left in command of the vessel and in possession of the ship's papers. On her arrival at Newport, she was li
THE belled by the captors, as being and bearing enemy proMARY, perty, and also by the United States for a breach of the STAFFORD, non-intercourse arts. The Claimants inade application MASTER, to the secretary of the treasury, and he, under the act of
January 2, 1813, “ directing the secretary of the treasury to remit fines, forfeitures and penalties, in certain cases," r’mitted the forfeitures and penalties accruing to the United States.
The brig's papers were regular, proving her to be an American registered vessel.
The invoices and bill of lading stated her cargo to be shipped by Harman Visger, on account of the heirs of general Fisher, citizens of the United States, and consigned to Peter Remsen & Co. New York, to account with Nanning J. Visscher, administrator, or with Barent Bleecker, Esq. of Albany, agent for the heirs. The invoices were all dated 13th August, 1812. The bill of lading had no date; but by its reference to the invoices, the shippers have given it the semblance of the same date.
War was declared by the United States against Great Britain on the 18th of June, 1812, and the fact was known in London on the 26th of July, following ; the news was stated on that day in the public gazette in London, to have been received in Liverpool on the 18th of the same month.
The Claimant was in England when the Mary sailed, and for some time after, and made no attempt to countermand the voyage. Insurance was obtained in England, freight paid, as well as license and brokerage money, and the exportation duties, before the Mary sailed.
The brig and cargo were acquitted in the District Court, but condemned in the Circuit Court; and from the decree of the latter the Claimants appealed.
STOCKTON, for the Claimants.
It is contended, on the part of the Appellants,
1. That the cargo in question having been purchased THE by citizens of the United States, either before the war MARY, was actually declared, or before that event was known STAFFORD, in England, and with the sole intent of transferring MASTER. American funds in England to the United States, the shipment was no act of illegal trading with the enemy, and no cause of forfeiture.
2. That the act of congress of 2d January, 1813, authorizes this importation, and, by legal construction, amounts to a license for this vessel and cargo.
3. That the circumstance of the vessel's sailing with a Sidmouth license, is no cause of forfeiture.
4. That the capture by the privateer was altogether unwarranted by its commission, and expressly against the instructions of the President of the United States ; and therefore that the property ought to be restored with damages and costs.
As to the first point, the withdrawing of funds, we contend that a person found in a foreign country at the time of the breaking out of a war between that country and his own, has a right to do every thing necessary to enable him to return to his own country with his effects. This doctrine is supported by weighty authorities, and is founded on principles of reason and justice. It is, besides, an act of sound policy in a nation to permit its own citizens to withdraw their funds from the hostile country; it is taking from the enemy's means of carrying on the war and adding to its own. According to the old rule on this subject, the withdrawing of funds from the enemy's country was a matter of right; but the modern rule of the Court of Admiralty has determined it to be a matter of favor merely. If it be a matter of favor, we conceive it is such a favor as both reason and policy would direct, in a case like this, to be granted. See is Rob. 161, 195. The Madonna delle Gracie.-Chitty's law of nations, 19, 20. Rob. 191, 232. The Dree Gebroeders.—1 Bos. fo Pul. 345. Bell & al. v. Gilson.—1 Rob. 184, 220. The Betty Cathcart.
2. As to the act of the 20 January, 1813, (laws U. 8. vol. 11, p. 341.) This act amounts to a license from the