cuit Court of Massachusetts district, which affirmed the under the 3d sentence of the district Court, restoring the brig to Claimants.

the

section of the act of 28th June, 1809, ch. 9, will over-reach a

An information was filed against the brig Mars, for bona fide sale a breach of the act of 28th of June, 1809, (entitled " An to a purchaser for valuable "act to amend and continue in force certain parts of consideration "the act, entitled an act to interdict the commercial in- without notice of the offence: "tercourse," &c.) in departing from port without having given bond according to the 3d section of the act, which provides that " if any ship or vessel shall, contrary to

the provisions of this section depart from any port "of the United States without clearance, or without "having given bond in the manner above mentioned, "such ship or vessel, together with her cargo, shall be "wholly forfeited."

The vessel, after her return to the United States, and before seizure, was bona fide purchased by the Claimants, for a full and valuable consideration without notice of the offence. Upon this ground she was by the decree of the district Court ordered to be restored; which decree was affirmed by the Circuit Court. Judge Story's opinion in pronouncing that decree, will be found in the preceding case of the United States v. 1960 bags of coffee.

This case having been submitted upon the arguments which were had in that case,

JOHNSON, J. delivered the opinion of the Court as follows:

"This case depends upon the principle established in the case against the coffee, the Bohlens, Claimants.*

* The case of the United States v. 1960 bags of coffee, ante p. 398. VOL. VIII.

53

U. STATES

บ. BRIGAN

TINE MARS.

The decision, as in that case, was founded upon the ground of a sale to a bona fide purchaser without notice.

The decree of the Circuit Court of Massachusetts district, in this case is therefore reversed, and the Brigantine Mars adjudged forfeited to the United States."

No lien upon

THE FRANCES, BOYER, MASTER.

(Irvin's claim.)

THIS was an appeal from the sentence of the Cirenemy's pro- cuit Court of Rhode Island, condemning certain British perty, by way of pledge for goods captured on board the Frances. These goods the payment were claimed by Thomas Irvin, a domiciled merchant of purchase money, or o- of the United States, on the ground of lien.

therwise, is sufficient to defeat the rights of the captors, in a prize Court, unless in very peculiar cases where the lien is imposed by a general law of the mercan

IRVING, for Appellant.

PINKNEY, for Captors.

Tuesday, March 15th. Absent....MARSHALL, Ch. J.

WASHINGTON, J. delivered the opinion of the Court

tile world, in as follows:

dependent of

any contract

between the

are sent upon

Thomas Irvin is a merchant of New York, and claims parties. certain packages of merchandize consigned to him by Where goods Robertson and Hastie, and also three boxes of merchanthe account & dize consigned to him by Pott and McMillan. The conrisk of the signors were British subjects, residing in Great Britain shipper, the delivery to the at the time that these goods were shipped, which, acmaster is a de-cording to the terms of the bills of lading, were on aclivery to him count and risk of the shippers.

as agent of the

shipper, not of

and it is com

the consignee; It is not pretended that the real ownership in these petent to the goods was not vested in the consignors, enemies of the consignor, at United States; but the Claimant founds his pretensions any time be on a lien created on the goods consigned by Robertson livery to the and Hastie, in consequence of an advance made to the consignee, to shippers, in consideration of the consignment, by his

agent in Glasgow; and on the goods shipped by Pott THE and M Millan, in virtue of a general balance of account FRANCES, due to him as their factor. To establish these claims (IRVIN'S in point of fact, an order for further proof is asked for, CLAIM,) and the question is, whether, if proved, the claim can, BOYER, in point of law, be sustained?

MASTER.

it, and thus to

taching.

The doctrine of liens seems to depend chiefly upon countermand the rules of jurisprudence established in different coun- prevent the tries. There is no doubt but that, agreeably to the consignee's principles of the common law of England, a factor has lien from ata lien upon the goods of his principal in his possession, for the balance of account due to him; and so has a consignee for advances made by him to the consignor. The consignor or owner cannot maintain an action against his factor, to recover the property so placed in his possession, without first paying or tendering what is thus due to the factor. But this doctrine is unknown in prize Courts, unless in very peculiar cases, where the lien is imposed by a general law of the mercantile world, independent of any contract between the parties. Such is the case of freight upon enemies' goods seized in the vessel of a friend, which is always decreed to the owner of the vessel. Abbott on Shipping, 184. It is, to use the words of sir W. Scott, "an interest directly and ❝ visibly residing in the substance of the thing itself." The possession of the property is actually in the owner of the ship, of which, by the general mercantile law of all nations, he cannot be deprived until the freight due for the carriage of it is paid. He has, in fact, a kind of property in the goods by force of this general law, which a prize Court ought to respect and does respect. On the one hand, the captor, by stepping into the shoes of the enemy owner of the goods, is personally benefited by the labor of a friend, and ought, in justice, to make him the proper compensation and on the other, the ship owner, by not having carried the goods to the place of their destination, and this, in consequence of an act of the captor, would be totally without remedy to recover his freight against the owner of the goods.

But in cases of liens created by the mere private contract of individuals, depending upon the different laws of different countries, the difficulties which an examination of such claims would impose upon the captors, and

THE even upon the prize Courts, in deciding upon them, and FRANCES, the door which such a doctrine would open to collusion (IRVIN'S between the enemy owners of the property and neutral CLAIM,) Claimants, have excluded such cases from the considerBOYER, ation of those Courts. In the case of the Tobago, 5 Rob, MASTER. 196, where an attempt was made by a British subject, to set up a bottomry interest on an enemy's ship, sir W. Scott observed, that no precedents to sanction such a claim could be produced: and he very properly concluded, that this was strong evidence that it had not been the practice of the Court to consider such bonds as property entitled to its protection. And it seemed to be conceded, that, upon the same principle, the captor could not entitle himself to the advantage of such liens, existing in an enemy, upon neutral property. From this it appears that the doctrine of the prize Courts upon this subject, works against as well as in favor of captors. The case of the Marianna, in 6 Rob. avoids all the objections made to the application of the case of the Tobago to the present. It is precisely in point.

The principal strength of the argument in favor of the Claimant in this case, seemed to be rested upon the position, that the consignor in this case could not have countermanded the consignment after delivery of the goods to the master of the vessel; and hence it was inferred that the captor had no right to intercept the passage of the property to the consignee This doctrine would be well founded, if the goods had been sent to the Claimant upon his account and risk, except in the case of insolvency. But when goods are sent upon the account and risk of the shipper, the delivery to the master is a delivery to him as agent of the shipper, not of the consignee; and it is competent to the consignor, at any time before actual delivery to the consignee, to countermand it, and thus to prevent his lien from attaching. Upon the whole, the Court is of opinion that, upon the reason of the case, as well as upon authority, this claim cannot be supported, and that the sentence of the Court below must be affirmed with costs.

LIVINGSTON, J. I differ in opinion from the majority of the Court. Irvin had a lien on the goods, apparent on the face of the papers. I have no difficulty in condemning the property subject to that lien; but I cannot assent to an unqualified condemnation.

THE THOMAS GIBBONS, ROCKWELL, MÁSTER,

THIS was an appeal from the decree of the Cir- Under the 8th

cuit Court for the district of Georgia.

section of the prize act of June 26th,

1812, the pres

The ship Thomas Gibbons sailed from Liverpool for Savannah, on the 16th of August, 1812, was captured ident bad full on the 12th of October following, on the high seas, off authority to isTybee light house, and, the same day, brought into the tion of 28th port of Savannah as prize to the privateer Atas.

sue the instruc

August, 1812. The commissions of the

the U. States

instructions of

The ship and cargo were under the protection of a privateers of special license, dated 21st July, 1812, and conceived in may be qualithe usual terms of the document usually denominated fied and rethe Sidmouth license, except that, in this instance, the strained by the protection was extended to the return voyage back to the president. Liverpool, there to discharge the cargo, and receive A shipment freight, if it should be found not to be allowable for the ter a knowvessel and cargo to enter the ports of the United States. ledge of the war, is to be considered as

made, even af

The clearance from Liverpool, 13th August, 1812, having been mentioned the ship as being released, in consequence of made in conher license, from an embargo laid on American vessels. repeal of the

sequence of the

orders in cour‣ cil, if made

after as would

The cargo, shipped at Liverpool by sundry British within so early merchants, was consigned to sundry commercial houses a period thereat Savannah, and was claimed by the respective con- leave a reasonsignees; by some, in their own behalf, and by others, able presumpin behalf of their correspondents in the interior.

tion that the knowledge of that repeal From the evidence introduced into the cause, it ap- would induce peared that part of the goods, although expressed to be hostilities on a suspension of on account and risk of the consignees, was shipped the part of the without previous orders or authority: that some of them . States. By the mere were shipped under general orders (transmitted in time act of illicit inof peace) to ship goods: others, under particular orders tercourse the given during the operation of the orders in council and property of a the non-intercourse act; such as, to ship when the divested ipso

trade opened," "at a proper season,' ""as soon as it facto it is only liable to be was legal to ship to the United States," &c. and lastly, condemned as that some of them were shipped with an understanding enemy properthat they were to become the property of the citizen con- ring to the en signee upon arriving at the port of destination. emy, if right

ty, or as adhe