Manella v. Barry. mented as a Moorish vessel, and navigated by subjects of the emperor of Morocco, shipped for account and risk of the defendant, a citizen of the United States, and consigned to Messrs. Gahn & Co., at Cadiz. On the 18th of May 1798, 270 hogsheads, amounting to $27,868.35, by the brig Minerva, a Danish vessel, regularly documented as such, navigated by Danish subjects, shipped for account and risk of the defendant, a citizen of the United States, and consigned to Messrs. Pablo, Greppi, Marliani & Co., at Cadiz. On the 26th of May 1798, 500 hogsheads, amounting to $60,914.56, by the ship Polly and Nancy, an American vessel, regularly documented as such, and navigated by citizens of the United States, shipped for account and risk of the defendant, a citizen of the United States, and consigned to Bernardo Lacosta, at Cadiz. *420] *On the 10th of July 1798, 100 hogsheads, amounting to $13,876.48, by the schooner Felicity, an American vessel, regularly documented as such, and navigated by American citizens, for account and risk of Don Carlos Longhy, of Genoa, and consigned to Messrs. Gahn & Co., at Cadiz. On the 23d of July 1798, 117 hogsheads, amounting to $17,269.77, by the brig Susanna, an American vessel, regularly documented, and navigated by citizens of the United States, for account and risk of Don Carlos Longhy, of Genoa, and consigned to Messrs. Pablo, Greppi, Marliani & Co., at Cadiz. On the 16th of August 1798, 288 hogsheads, amounting to $43,064.54, by the ship Henrietta, an American vessel, regularly documented, and navigated by citizens of the United States, for the account and risk of Don Carlos Longhy, of Genoa, and consigned to Bernardo Lacosta, at Cadiz. And on the 8th of November 1798, 191 hogsheads by the brig Fly, an American vessel, regularly documented, and navigated by citizens of the United States, for account and risk of the defendant, a citizen of the United States, and consigned to Bernardo Lacosta, at Cadiz. The Moorish brig Muqueni was captured by the British, and condemned at Gibraltar, together with her cargo, as enemy's property. The Danish brig Minerva was captured by the French, and, together with her cargo, condemned as good prize, by a French consul at Malaga, in Spain. The ship Henrietta was captured by the British, and, with her cargo, condemned at Halifax, as enemy's property. The other four vessels arrived safe, and their cargoes were received by the plaintiffs, and applied to their own use and profit. The bills drawn by the defendant, to the amount of $204,*421] 073.72, were duly paid, and the proceeds came to the hands of the defendant, and were applied to the purchases of the tobacco. The cost and charges of the tobacco, which arrived safe, exceeded the sum to which it would have amounted at $10 per quintal, by the sum of $5478.27. The defendant produced the letters of Menendez, of which the following are translated extracts: City of Washington, 28th May 1798. "Mr. James Barry, Baltimore: Esteemed Sir: By your favor of 27th inst., I am informed relative to the purchases of tobacco, and the affreightments entered into for its shipment, all of which you have executed with that zeal and efficacy which you are accustomed to, and I therefore approve of the exact Manella v. Barry. itude of your operations. At same time, I flatter myself that you will continue successively with equal activity, until the total compliance of 20,000 quintals ordered; and you may rest assured, as to my particular errand, that the payments shall be realized in London." Washington, 29th May 1798. "Under date of yesterday, I wrote you a letter, approving of all your operations relative to the tobacco purchases, and affreightment for its shipment. The contents thereof I now confirm, you having done everything to my entire satisfaction, and as I would have expected from your exactitude and zeal. On the score of placing the funds in London, you may rest satisfied, because you well know that this is the principal object which has compelled me to go to Spain. I hope that in the next order, we shall be able to effect the purchases to more advantage, and with less trouble." *"Capes of Virginia, on board the ship Polly [*422 "Dear Friend-The 4th instant, we sailed from Alexandria, and ever since have we been in the river, detained by calms and contrary winds, which has made me very impatient. By the last accounts which I have observed in the newspapers, I am persuaded, that war is as much as declared between the United States and France. This novelty troubles me much, for which reason, if it be agreeable to you, and equally convenient, to have the future shipments made on Danish or Swedish flags, and in the name of Charles Longhy, of Genoa, you acting as his agent, you may do it so, by declaring in the bills of lading and invoices, that the cargoes are for the account and risk of said Longhy, and by giving letters to the said captains for Messrs. Greppi, Lacosta, or Gahn, of Cadiz, of the following tenor : 666 'Gentlemen: In virtue of orders I have received from Mr. Charles Longhy, of Genoa, to remit him a cargo of tobacco, on his proper account and risk, I have loaded in the ship, captain [so many] hogsheads of tobacco, and I have given orders to said captain to touch at your port (if not blockaded) and to call upon you with a view to get permission from your government to sell a parcel; should the captain succeed in entering your port, and that you can obtain leave to dispose of the whole or part of his cargo, you will please to do so, for the best advantage of the said Mr. Longhy, remitting him the proceeds to Genoa. And in case that you cannot obtain a sale, you will please to direct the captain to proceed on to the said port of Genoa, supplying him with the means therefor,' &c. "In this way, it will be proper for you to charge your commission in the invoice. I contemplate that by making the further shipments in this mode, the property will go with more security, said Longhy being a neutral subject; and should the vessel be met by French cruisers, *the cargoes [*423 would go secure, as the property would not appear to be American. I also believe, that nothing of this would affect the insurances; and at all events, it is best, because the insurances will be done on neutral ships and neutral property, so that the property also sounds as neutral. Should you, since my departure from Baltimore, have chartered any American vessel, you can make the shipment in the same way; because, in case a French cruiser should capture the vessel, the cargo may be saved, on account of its not appearing to be American property; so that the only thing subject to Manella v. Barry. condemnation, in that case, will be the vessel and her freight; whereas, if the property goes in your name, both vessel and cargo will be condemned, if under American colors; but, if on a Danish or Swedish vessel, then the cargo only would be condemned. Therefore, whenever you can meet a Danish or Swedish vessel, and by making the shipment as for account of Longhy, the neutral subject, there can be no risk. Therefore, it appears to me very proper and consistent, in order to obviate these risks, in every case, that the further shipments do not sound in your name, but in that of said Longhy; or if not, in that of Messrs. Ghan & Co., of Cadiz, or of Mr. Gould, your brother-in-law, provided the French and the Portuguese come to a good understanding, which I am informed is the case, and that matters have been accommodated between them. "Finally, you know, better than I do, the critical circumstances of the day, and for this reason, I am satisfied, you will be attentive in making choice of the mode which may be best calculated to save any shipment you may make. I can only say, that of this vessel, I have much fear and apprehension, notwithstanding she sails fast. "In case you should act conformably to what I have here mentioned, as to further shipments, I, from this moment approve thereof; and that it may appear, and to save you from any accident that may occur, as also to prove that such has been with my knowledge and approbation, you are to keep this letter in your possession, in order that at no time whatever you should be chargeable with the consequences. *424] *"You will encharge the captains to wait the opportunity of a fresh N. W. wind, in order the sooner to get clear of the coast, and the danger of cruisers, the same we had in view. You will also direct them to make for the first port of Spain, be it which it may, as the great object is, to save the cargoes." This letter was received by the defendant, before the shipment by the Henrietta was made. On the same 14th of June 1798, Menendez wrote a letter also to Robert Barry, the nephew, and principal clerk and assistant of the defendant in his business, of which the following are translated extracts : "By what I wrote your uncle, under this same date, you will be informed of all that I have recommended. In addition to which, I shall mention to you, that you will perceive in the copy of the private instructions, what I am directed to do, on the score of the tobacco shipments, and you will see, in one article thereof, that I am expressly ordered to make the shipments in neutral vessels, and that the property shall appear as that of the neutral subject. In the present day, it may be said, that war is declared between these states and the French republic; for which reason, we may view the thing in a different light. "When you make up the general invoice, you will recollect to charge in that which you are to forward to Bernardo Lacosta, two and a half dollars per quintal of tobacco, over and above the real costs and charges, adding a note to the bottom thereof, that you do not charge insurance, nor loss on the reimbursements, such being to be done in Europe, and that you do not know to what amount they may ascend. The general invoice containing the real costs and charges you will remit to Mr. Joseph Anthony de Sola, adminis Manella v. Barry. trator-general of the king's tobacco stores, at Cadiz, or directed in my name, which letter for me will always come to the hands of said Sola. You already know, that the other fictitious invoice is intended to be exhibited at Madrid, but that no other person shall know anything of the other that is to contain the real cost and charges, by which only we the concerned *are to be [*425 governed. The invoice you are to remit to Bernardo Lacosta, in which the two and a half dollars per quintal is to be overcharged, is also to be delivered to Joseph Anthony de Sola, which you will remind him of." This last letter was received by Robert Barry, within a few days after its date, and before the shipment by the Henrietta, and was by him delivered to the defendant. It was also proved, that Menendez, on his first arrival at Baltimore, declared to the defendant that he had private instructions, not contained or specified in the said letter of the 27th of January 1798; and that those private instructions authorized, among other things, a shipment of the tobacco to be purchased, in neutral vessels, generally, without confining the same to American vessels. That Robert Barry saw in the possession of Menendez, soon after his arrival in Baltimore, a written paper in the Spanish language, purporting, and declared by Menendez to be a paper containing such private instructions. That Menendez read a part of them to Robert Barry, who looked at the paper at the same time, and saw that he read correctly, and that what he read was of the purport aforesaid. That at the time of taking up the Moorish brig and Danish barque, the defendant found it impossible to procure suitable American vessels. That Menendez knew of, and approved, the shipments in the Moorish brig and Danish barque, at the time they were made. That the defendant constantly communicated with Menendez, during his stay in Baltimore, on the subject of the said purchases and shipments, and therein acted with his entire approbation and concurrence. That Menendez urged the necessity of making the shipments of the tobacco speedily, even if the price should be greater than $10 per quintal, calculating, as he said, that if the tobacco should arrive in Spain at $15, the concern would clear $100,000, and that for his share or interest therein, which was one-tenth, he should clear $10,000. That the aggregate of all the purchases of tobacco, excluding insurance, freight and commissions, *did not exceed $10.50 per quintal, and that Menendez approved the prices at which they were made. That Danish and [*426 Moorish vessels were neutral vessels, and that the tobacco was really shipped for the actual account and risk of the plaintiffs. Whereupon, says the first bill of exceptions, "the plaintiffs, by their counsel, offered to swear a witness, to prove to the jury, that the said paper, at first read in evidence to the jury by them, as a true translation of the said letter of the 27th of January 1798, is not a correct translation of the said letter, in that part of it which is contained in the following words, ‘para presentiar la expedicion,' and that the true construction of the said words is, to be present at, or assist in, the shipments,' and not to superintend the shipments,' as in the said paper is stated; to the swearing which witness, for the purpose aforesaid, the defendant, by his counsel, consented, but the court would not admit such evidence to be given to the jury, on the trial of such Manella v. Barry. issue, to determine the true import and legal construction of the said words.” To which opinion, the counsel for the plaintiffs excepted. The second bill of exceptions began as follows: "And upon the aforegoing statement, prefixed to the first bill of exceptions in this case, the plaintiffs, by their counsel, prayed the directions of the court, that if the jury believed the matters so offered and given in evidence by the plaintiffs, then the plaintiffs are entitled to recover, in their action, the amount of the price, costs and charges of the tobacco, shipped as aforesaid on board" the Moorish brig Muqueni, the Danish brig Minerva, and the American ship Henrietta, and also the sum of $5478.27, being the excess in the price, costs and charges of the four cargoes shipped by the defendant, and received by the plaintiffs as aforesaid, over and above the price limited by the letter of the 27th of January 1798. "But the court were of opinion, and did direct the jury, that by that letter, the defendant was authorized to make the shipments of tobacco on board of other than American vessels, or *vessels belonging *427] to citizens of the United States, agreeable to the laws thereof, and that the shipment of the tobacco in the Moorish and Danish vessels, as stated in this bill of exceptions (the said vessels being admitted to be neutral vessels as aforesaid), was not in violation of the instructions in the said letter, and that the plaintiffs have not sustained the present action for the recovery of damages for such shipments on the said Danish and Moorish vessels, against the said defendant. And the court were also of opinion, and did accordingly direct the jury, that by the said letter of instructions, the defendant was authorized to make the shipment of tobacco in the ship Henrietta, as above stated in this bill of exceptions, and to consign the said tobacco for the account and risk of the said Don Carlos Longhy, as stated in the said bill of exceptions. And the court were also of opinion, and did direct the jury, that if the defendant had not such discretion, by the said letter, yet if the jury believed, that the said several shipments of tobacco, on board the said Moorish and Danish vessels, and the said American ship Henrietta, were made as herein before stated, by the direction, and with the approbation of the said Menendez, or were afterwards ratified by him, as agent of the plaintiffs, as herein before stated, the plaintiffs have not sustained their present action for the recovery of damages for such shipments. And the court were of opinion, and directed the jury, that the evidence was sufficient in law to establish that the said shipments were made by the direction of the said Menendez, as agent of the plaintiffs, and were also ratified and confirmed by him, as agent as aforesaid. And the court were also of opinion, and directed the jury, that the price of $10.50 for each quintal of tobacco, limited by the said letter of the 27th of January 1798, for the purchase of tobacco by the defendant, was the price that the defendant might give in America, exclusive of charges of every kind, and that as the price of the said tobacco, shipped by the defendant, did not average so much as $10.50 per quintal, the plaintiffs have not sustained the present action to recover damages for the excess of price given, including charges." To which several opinions, the plaintiffs excepted. *428] *The verdict and judgment were for the defendant, and the plaintiffs brought their writ of error into this court. Harper, for the plaintiffs in error, observed, that the duty which he was |