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THE UNITED STATES

1814. March 15th.

0.

THE BRIGANTINE MARS.

THIS was an appeal from the sentence of the Cir- À forfeiture cuit Court of Massachusetts district, which affirmed the under the 3d sentence of the district Court, restoring the brig to the act of 28th Claimants.

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 or act to amend and continue in force certain parts of consideration

the act, entitled an act to interdict the commercial in- without notice tercourse," &c.) in departing from port without having of the offences given bond according to the 3d section of the act, which provides that s if any ship or vessel shall, contrary to “ the provisions of this section depart from any port 6 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

ů. STATES The deeision, as in that case, was founded upon the

ground of a sale to a bona fide purchaser without notice. BRIGAN

The decree of the Circuit Court of Massachusetts MARS. district, in this case is therefore reversed, and the Bri

gantine Mars adjudged forfeited to the United States."

TINE

THE FRANCES, BOYER, MASTER.

(Irvin's claim.)

No lien upon

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

IRVING, for Appellant. of the captors, in a prize

PINKNEY, for Captors. Court, unless in very peculiar cases Tuesday, March 15th. Absent....MARSHALL, Ch. 3. where the lien is imposed by a general law

WASHINGTON, J. delivered the opinion of the Court of the mercantile world, in as follows: dependent of any contract

Thomas Irvin is a merchant of New York, and claims between the 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 M‘Millan. The conrisk of the signors were British subjects, residing in Great Britain 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 the consignee; It is not pretended that the real ownership in these and it is competent 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

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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.

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The doctrine of liens seems to depend chiefly upon countermand the rules of jurisprudence established in different coun. it, and thus to tries. There is no doubt but that, agreeably to the consignee's principles of the common law of England, a factor has lien from at

taching
ą lien upon the goods of his principal in his posses-
sion, 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 bis freight against the owner of the goods.

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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

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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 can. pot assent to an unqualified condemnation.

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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, The ship Thomas Gibbons sailod from Liverpool for

1812, the

presSavannah, 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.

August, 1812.
The commis-

sions of the The ship and cargo were under the protection of a privateers of special license, dated 21st July, 1812, and conceived in the U. States

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

made, even affreight, if it should be found not to be allowable for the vessel and cargo to enter the ports of the United States. ledge of the

war, is to be

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

orders in cour

cil, if, made 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,

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 on account and risk of the consignees, was shipped the part of the without previous orders or authority: that some of them , States, were shipped under general orders (transmitted in time act of illicit inof peace) to ship goods : others, under particular orders tercourse the

a given during the operation of the orders in council and Citizen is not the non-intercourse act; such as, to ship 6 when the divested ipso trade opened," « at a proper season,'

ly 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 propea that they were to become the property of the citizen con- ring to the ensignee upon arriving at the port of destination.

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