Mars v. The Brigantine Mars., 12 U.S. (8 Cranch) 417 (1814)
Case details
Bluebook Citation
Mars v. The Brigantine Mars., 12 U.S. (8 Cranch) 417 (1814)
Full caption
The Mars, (a) United States v. The Brigantine Mars.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
1814
*417] *The Mars , (a)
Unit ed States v . The Brigantine Mars .
Forfeiture. —Bond fide purchaser.
A forfeiture under the 3d section of 28th June 1809, ch. 9, will overreach a bona fide sale to a purchaser, for a valuable consideration, without notice of the offence. The Mars, 1 Gallis. 191, reversed.
This was-an appeal from the sentence of the Circuit Court of Massachusetts district, which affirmed the sentence of the district court, restoring the brig to the claimants.
An information was filed against the brig Mars, for a breach of the act of 28th of June 1809 (entitled “ an act to amend and continue in force certain parts of the act, entitled an act to interdict the commercial intercourse,” &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 p. 257bond 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 Stor y ’s opinion in prononncing that decree, will be found in the preceding case of the United States v. 1960 diags of Coffee. This case having been submitted upon the arguments which were had in that case—
Johns on , 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, (a) *The decision, as in that case, was founded upon the ground of a sale to a bond fide purchaser, without notice. *L 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.
Decree reversed.
The Franc es , Boyer , Master: Ibvin ’s claim.
Capture as prize.—Discharge of lien.
No lien upon enemy’s property, by way of pledge for the payment of purchase-money, or otherwise, 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 mercantile world, independent of any contract between the parties.1 Where 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 the consignee’s lien from attaching.
This was an appeal from the sentence of the Circuit Court of Rhode Island, condemning certain British goods, captured on board the Frances. These good were claimed by Thomas Irvin, a domiciled merchant of the United States, on the ground of lien.
Irving, for appellant: Pinkney, for captors.
Tuesday, March 15th, 1814. (Absent, Marshall, Ch. J.) Washi ng - ton , J., delivered the opinion of the court, as follows :—Thomas Irving is a merchant of New York, and claims certain packages of merchandise consigned to him by Robertson & Hastie, and also three boxes of merchandise consigned to him by Pott & McMillan. The consignors were British subjects,, residing in Great Britain, at the time that these goods were shipped, which,, according to the terms of the bills of lading, were on account and risk of the shippers.
It is not pretended, that the real ownership in these goods was not vested in the consignors, enemies of the United States ; but the claimant founds his pretensions on a lien created on the goods consigned by Robertson & Hastie, in consequence of an advance made to the shippers, in consideration of the consignment, by his *agent in Glasgow ; and on the goods shipped by Pott & McMillan, in virtue of a general balance of
(a) The case of the United States v. 1960 Bags of Coffee, ante, p. 398. p. 258account due to him as their factor. To establish these claims^ in point of fact, an order for further proof is asked for, and the question is, whether, if proved, the claim can, in point of law, be sustained ?
1
The Battle, 6 Wall. 498; The Hampton, 5 Id. 372. 8 Cran ch —17 257
The doctrine of liens seems to depend chiefly upon the rules of jurisprudence established in different countries. There is no doubt, but that, agreeable to the principles of the common law of England, a factor has a lien upon 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. iScot t , “ 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 other 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 the act of the captor, would be totally without remedy to recover bis 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 *4901 *even uPon the prize courts, in deciding upon them, and the door J which such a doctrine would open to collusion between the enemy owners of the property and neutral claimants, have excluded such cases from the consideration of those courts. In the case of The Tobago, 5 Rob. 196, where an attempt was made by a Britith subject, to set up a bottomry .interest in an enemy’s ship, Sir W. Scot t 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 properly 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, 6 Rob. 24, 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 p. 259no 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.
Living st on , J. (dissenting.)—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.
Decree affirmed.
*The Tho ma s Gibb ons , Rockwel l , master. [*421
Privateers.—Condemnation as prize of war.
Under the 8th section of the prize act of June 26th, 1812, the president had full authority to issue the instruction of 28th August 1812.
The commissions of the privateers of the United States may be qualified and restrained by the instructions of the president.
A shipment made, even after a knowledge of the war, is to be considered as having been made in consequence of the repeal of the orders in council, if made within so early a period thereafter, as would leave a reasonable presumption, that the knowledge of that repeal would induce a suspension of hostilities on the part of the United States.
By the mere act of illicit intercourse, the property of a citizen is not divested ipso facto ; it is only liable to be condemned as enemy property, or as adhering to the enemy, if rightfully captured during the voyage.
The president’s instruction of 28th August 1812, was meant to protect all British merchandise on board an American ship, without any exception on account of British proprietary interest.
This was an appeal from the decree of the Circuit Court for the district of Georgia.
The ship Thomas Gibbons sailed from Liverpool for Savannah, on the 16th of August 1812, was captured on the 12th of October following, on the high seas, off Tybee light-house, and the same day, brought into the port of Savannah, as prize to the privateer Atas.
The ship and cargo were under the protection of a special license, dated 21st July 1812, and conceived in the usual terms of the document usually denominated the Sidmouth license, except that, in this instance, the protection was extended to the return-voyage back to Liverpool, there to discharge the cargo and receive freight, if it should be found not to be allowable for the vessel and cargo to enter the ports of the United States. The clearance from Liverpool, 13th August 1812, mentioned the ship as being released, in consequence of her license, from an embargo laid on American vessels. The cargo, shipped at Liverpool by sundry British merchants, was consigned to sundry commercial houses at Savannah, and was claimed by the respective consignees ; by some, in their own behalf, and by others, in behalf of their correspondents in the interior.
From the evidence introduced into the cause, it appeared, that part of p. 260the goods, although expressed to be on account and risk of the consignees, was shipped without previous orders or authority ; that some of them were shipped under general orders (transmitted in time of peace) to ship goods ; others, under particular orders given during the operation of’the orders in council and the non-intercourse act ; such as, to ship “ when the trade opened,” “at a proper season,” “ as soon as it was legal to ship to the United States,” &c.; and lastly, that some of them were shipped with an understanding that they were to become the property of the citizen consignee, upon arriving at the port of destination. *4991 *The commission of the Atas was granted on the 24th of Septem-
J her 1812, and was accompanied by a copy of the president’s instructions to privateers, of the 28th of August 1812, by which the public and private armed vessels of the United States are directed not to interrupt “ any vessels belonging to citizens of the United States, coming from British ports to the United States, laden with British merchandise, in consequence of the alleged repeal of the British orders in council.”
Jones, for the captors, contended, that the ship and cargo were enemy property.
I. Constructively so, by the maritime law of nations, according to which law the hostile character is impressed : 1. By being placed, by the enemy’s pass or license, infra, præsidium hostis ; and by the employment and course of traffic : The Vigilantia, 1 Rob. 10, 11. 2. By direct trading with the enemy, flagrante bello.
IL Actually so, with regard to a great proportion of the cargo, according to the principles of municipial law, as recognised and acted upon by prize courts, in administering the maritime law of nations ; according to which : 1. Goods shipped without previous orders or authority, although expressed to be on account and risk of the consignee, continue the property and at the risk of the enemy shipper, until accepted by the citizen consignee. 2. General orders (transmitted in time of peace) to ship goods, are, ipso facto, superseded, if war intervene and render the act unlawful as well as dangerous. 3. Particular orders (given during the operation of the orders in council and the non-intercourse act) to ship “ when the trade opened,” or “ at proper seasons,” or “ as soon as it was legal to ship to the United *4231 *St ;a^e8>” cou^d not authorize a shipment, merely upon the conditional J revocation of the orders in council, whilst the American non-intercourse act continued in force, à fortiori, if war should supervene. 4. The proprietary interest in goods shipped with an understanding that they are to become the property of the citizen consignee, upon arriving at the port of destination, continues in the enemy shipper, until arrival and delivery, without regard to the terms in which the consignment is ostensibly made. The Packet de Pilboa, 2 Rob. 111. That, therefore, goods captured in itinere, under either of the foregoing predicaments, were to be treated as the property and at the risk of the shipper, and as partaking of his national character.
The principal question, he said, which would now be agitated was, whether the instruction of the president of the United States to American privateers, of 28th August 1812, extended to the case now under consideration. He contended, that it did not : or if it did, that it could not legally p. 261avoid the capture, nor in any manner affect the rights of the captors, quoad the prize in question, but could only be enforced (as originally intended) by the exercise of executive discretion and authority over the commission of the privateer. That, according to the decision in the case of The Sally {ante, p. 382), that the prize act operates as a grant from the United States to the captors, the president could not deprive them of their rights under that act. That the power of the president to instruct must be limited by the rights so granted to the captors. That the authority with which he was invested by congress, was only given him to regulate the conduct of our privateersmen, and to prevent abuses ; not to limit their rights already vested. ‘That he had no general authority to limit the rights of war, aS was clear from the passage of particular acts of congress investing him with the respective powers of removing British subjects, of giving licenses to depart, &c., which would have been wholly unnecessary, had he possessed a general power over these matters. That the position contended for, was further supported by the terms employed in the third section of the prize act, in which the owners, &c., of privateers are required to give bond *to . the United States, that they will observe “ the instructions which *- shall be given them according to law, for the regulation of their conduct: ” also by the letter of the secretary of state (Mr. Monroe) to Mr. Russell, of August 31st, 1812, written under the eye of the president, in which the secretary says, that it was not in the power of the president to control the privateers, except by an indiscriminate revocation of their commissions. But—
2d. That, admitting the power of the president to issue the instruction under consideration, the present case was not embraced thereby. That the property in question, having been shipped after a full knowledge of the war, could not be considered as shipped in consequence of the alleged repeal of the orders in council. That the only time in which the shipments contemplated by the instruction, could be made, was that which intervened between the repeal of the orders in council and the knowledge of the declaration of war ; after which, it was unreasonable to calculate on the safety of property shipped for the United States., That the ship also was not within the description of vessels intended by the instruction to be exempted from capture, because she was engaged in an illicit intercourse with the enemy, under an enemy passport, issued after the knowledge of the war in England, and was, therefore, quasi enemy property. That, at all events, the property intended to be protected, by the instruction, from capture, was American property, and not British, and therefore, that, as to the latter, the capture was certainly rightful.
Harper, contra.—It has been said, on the part of the captors, that the president had no authority to issue the instruction of 28th August, either on general principles, or under the prize act. We contend, that his authority to issue it, may be established on either of these grounds.
1. On general principles. The president, as commander-in-chief of the army and navy of the United States, has, in time of war, the whole public armed force of the nation under his control. The privateers of the United States constitute a part of the public armed force* : this appears from their commissions, without which they would be pirates. On gen- L p. 262eral principles, therefore, the president was authorized to issue the instruction in question.
2. By the 8th section of the prize act, the president is authorized to establish and order suitable instructions for the better governing and directing the conduct of the privateers of the United States. Now, this “ governing and directing ” their conduct, we conceive, may be applied as well to the designation of the objects of hostility as to the mode of attack, &c. It is applicable, in our opinion, to their whole conduct.
But it is contended, that the present case is not embraced in the instruction. It is said, that the ship did not sail in consequence of the repeal of the orders in council. What, then,*we would ask, was the motive for sailing, at the particular time this vessel sailed? What could have induced the master to sail, after knowledge of the war, but a confidence that the repeal of the orders in council would have put a period to hostilities ? It is well known, that such a confidence did exist among the merchants in England, generally, and that it continued, until it was ascertained in that country, that the repeal of the orders had not produced the expected effect. The act of congress of 2d January 1813, remitting certain fines, forfeitures, &c., has fixed upon the 15th of September as the period when it was known in England that this effect had not been produced. This vessel sailed on thé 16th of August preceding. We insist, therefore, that notwithstanding the existence of hostilities was known in England, at the time the Thomas Gibbons sailed, yet she sailed in consequence of the repeal of the orders in council.
The expression in Mr. Monroe’s letter of 31st August, was probably accidental—certainly incidental, and not a particular object of the letter. The expression, British merchandise, in the instruction of 28th August, was not intended to designate the right of- property, but the kind of goods. It was the policy of government to protect British as well as American
*ProPerty shipped under the particular circumstances mentioned in
-* the instruction.
Pinkney, on the same side.—The president cannot coerce the privateers of the United States to do what he pleases, but he may restrain them, as he thinks proper.
It has been said, that the license under which this vessel sailed, was issued after knowledge of the wai’ in England. This must be a mistake—it is dated on the 21st of July 1812, when the war was not known in England ; and it is to be presumed, that it was issued at the time it bears date. Being issued, therefore, before knowledge of the war, it does not give a hostile character to the vessel.
Harper.—The property is vested in the captors only when legally taken, it is vested sub modo.
Stor y , J.—That is the rule as laid down in the opinion of the court delivered this morning in the case of The Sally : the prize act vests only property lawfully captured.
Jones, in reply.—The captors may be punished, if guilty ; but the captured property must vest in them notwithstanding. The instruction applies p. 263only to American vessels : but the license, we stilb contend, gave the vessel in question a hostile character.
Where the instruction speaks of British merchandise, the meaning is British merchandise belonging to American citizens. This construction is consistent with all the acts of congress on the subject, especially the act of 2d January, remitting forfeitures, &c. It is consistent also with Mr. Bussell’s declarations to the British merchants. See 2d vol. of Reports of Committees, p. 30.
Wednesday, March 16th, 1814. (Absent, Marshall, Ch. J., and Johnson, J.) Stor y , J., delivered the opinion of the court.
*The ship Thomas Gibbons, laden with a cargo of British manu- rH. . factures, on account of British and American merchants, sailed from L Liverpool, in Great Britain, on the 16th August 1812, bound for Savannah, in Georgia, and was captured on the 12th of the ensuing October, on the high seas, off Tybee light-house, by the private armed vessel Atas, Thomas M. Newhall, commander, and on the same day, brought into Savannah as prize of war. The ship sailed from Liverpool under the protection of a special license, dated the 21st of July 1812, granted by Lord Sidmouth, by order of the privy council, whereby the ship and cargo were protected from British capture, not only on the voyage to the United States, but also on the return-voyage to Liverpool, in case the master should not be permitted to land the cargo in the United States ; and the master was further allowed, in case of return, to receive his freight, and proceed in ballast to any port not blockaded. The commission of the Atas was granted on the 24th of September 1812, accompanied by a copy of the president’s instruction of the 28th of August 1812.
A libel was filed in the district court of Georgia, upon which regulai’ proceedings were had against the ship, as prize of war. The respondents interposed their claims, and the district-attorney also interposed a claim in behalf of the United States. At the hearing, the district court dismissed the libel of the captors, and upon appeal, the decree was affirmed in the circuit court.
The principal question which has been moved at bar, is, whether the capture of the ship was lawful ? and that depends upon the authority of the president to issue that instruction, and upon the true construction of it, if rightfully issued.
As to the authority of the president, we do not think it necessary to consider how far he would be entitled, in his character of commander-in-chief of the army and navy of the United States, independent of any statute provision, to issue instructions for the government and direction of privateers. That question would deserve grave consideration ; and we should not be disposed to entertain the discussion of it, unless it become unavoidable. In the *case at bar, no decision on the point is necessary ; because we r*^28 are all of opinion, that, under the 8th section of the prize act of 1812, *- ch. 107, the president had full authority to issue the instruction of the 28th of August. That section provides, that the president shall be authorized “ to establish and order suitable instructions for the better governing and directing the conduct ” of private armed vessels commissioned under the act, their officers and crews. The language of this provision is very general, and in our opinion, it is entitled to a liberal construction, both upon the manifest intent of the legislature, and the ground of public policy.
It has been argued, that privateers acquire, by their commissions, a general right of capture, under the prize acts, which it is not in the president’s power to remove or restrain, while the commission is in force ; that therefore, his right to issue instructions must be construed as subordinate to the general authority derived from the commission ; and that, in this view, his instructions should extend only to the internal organization, discipline and conduct of privateers. We cannot, on mature deliberation, yield assent to this argument. It is very clear, that the president has, under the prize act, power to grant, annul and revoke, at his pleasure, the commissions of privateers ; and by the act declaring war, he is authorized to issue the commission in such form as he shall deem fit. The right of capture is entirely derived from the law : it is not an absolute, vested right which cannot be taken away or modified by law : it is a limited right, which is subject to all the restraints which the legislature has imposed, and is to be exercised in the manner which its wisdom has prescribed. The commission, therefore, is to be taken in its general terms, with reference to the laws under which it emanates, and as containing within itself all the qualifications and restrictions which the acts giving it existence have prescribed. In this view, the commission is qualified and restraind by the power of the president to issue instructions. The privateer takes it subject to such power, and contracts to act in obedience to all the instructions which the president may lawfully promulgate. *219 01 Public policy, also, would confirm this construction. *Ithas been
-• the great object of every maritime nation, to restrain and regulate the conduct of its privateers : they are watched with great anxiety and vigilance, because thèy may often involve the nation, by irregularities of conduct, in serious controversies, not only with public enemies, but also with neutrals and allies. If a power did not exist to restrain their operations in war, the public faith might be violated, cartels and flags of truce might be disregarded, and endless embarrassments arise in the negotiations with foreign powers. Considerations of this weight and importance are not lightly to be disregarded ; and when the lanugage of the act is so broad and comprehensive, we should not feel at liberty to narrow or weaken its force, by a construction not pressed by the letter, or the spirit, or the policy of the clause. On the whole, we are all of opinion, that the instruction of the president of the 28th of August, is within the authority delegated to him by the prize act.
But it is argued, that, admitting its legal validity, this instruction cannot protect the ship and cargo from capture as prize of war, because the cargo was shipped, after a full knowledge of the war, and not “in consequence of the alleged repeal of the British orders in council.” We are of a different opinion. We think, that a shipment made even after a knowledge of the war, may well be deemed to have been made in consequence of the repeal of the orders in council, if made within so early a period as would leave a reasonable presumption that the knowledge of that repeal would induce a suspension of hostilities, on the part of the United States. Congress have evidently acted upon this principle ; and have themselves fixed the time (the 16th of September 1812), before which, shipments might be reasonably made upon the faith of that presumption. Act of 2d January 1813, ch. 149. We are not inclined to hold a less liberal construction in favor of the acts of p. 265individuals proceeding from a confidence in the avowed intentions of the government.
It is further argued, that the ship was not within the description of vessels intended by the instruction to be exempted from capture, because she was engaged in an illicit intercourse with the enemy, under an enemy passport, and therefore, was quasi enemy property. We *cannot assent to this argument. The vessels exempted from capture are *• “ vessels belonging to citizens of the United States, coming from British ports to the United States.” The ship, in this case, was duly documented as an American, was coming to the United States, and from a British port. How can it be possible to bring a case more perfectly within the terms of the description ? The argument proceeds upon the supposition, that by the mere act of illicit intercourse, the property of an American citizen becomes divested ipso facto ; but in point of law, this is not the operation of the rule. The property is only liable to be condemned as enemy property, or as adhering to the enemy, if righfully captured during the voyage. But it has never been supposed, that the documentary character of the ship itself, or the character of the owner, was completely changed for every other purpose. It is sufficient, however, in our opinion, that no such distinction as that assumed in the argument, is to be found in the instruction itself; and we, therefore, hold the case within the natural and ordinary import of the language.
It is further argued, that, at all events, the property intended to be protected by the instruction from capture, was American property, and not British property ; and therefore, that, as to the latter, the capture was rightful This is a question of some difficulty ; but on full consideration, a majority of the court are of opinion, that the instruction meant to protect all British merchandise on board an American ship, without any exception on account of British proprietary interest. It was supposed, that British as well as American merchants might, upon the repeal of the orders in council, be induced to make shipments, upon the faith that such repeal would suspend the further operations of hostilities. The government meant to reserve to themselves the ultimate disposal of such property, in order that they might restore or condemn it, as public policy or the national interests might require. This construction is supported and confirmed by the act of congress of 13th July 1813, ch. 10, which, after relinquishing to the captors all the right and title of the United States, to the property of British subjects, captured on the high seas, and shipped from British ports, since the declaration of war, expressly excepts such property as has been captured in violation *of the president’s instruction of the 28th of August 1812. p.oi In giving this construction, therefore, we are satisfied, that we con- L form to the import of the language of the instruction, and do not contravene any policy avowed by the government itself.
On the whole, we are of opinion, that the decree of the circuit court, dismissing the libel of the captors, ought to be affirmed, and that the cause should be remanded to the circuit court for further proceedings as between the United States and the claimants.
Decree affirmed.
Prin ce v . Bartle tt , (a)
Priority of the United States.
In case of insolvency, the United States are not entitled to priority of payment, unless the insolvency be a legal and known insolvency, manifested by some notorious act of the debtor, pursuant to law. Bartlett v. Prince, 9 Mass. 431, affirmed.
Error to the Supreme Judicial Court of Massachusetts, in an action of trover, in which was involved the construction of the acts of congress giving to the United States a right of priority in payment of the debts due by insolvent debtors. The case was submitted to the court, without argument, and is fully stated in the opinion which was delivered, as follows, by—
Duvall , J.—The material facts upon the record are these : On the 4th of June 1810, sundry goods, wares and merchandise, the property of Wellman & Ropes, were attached by the deputy of Bailey Bartlett, sheriff of the county of Essex, state of Massachusetts, by virtue of certain writs of attachment sued out by several creditors of Wellman & Ropes. On the 18th day of September 1810, two several executions, issued on judgments recovered by the United States against Wellman & Ropes, at the September term 1810, of the district court, held at Salem, on their joint and several bond for duties at the ^custom-house. The actions in which these judgments in favor of the United States were rendered, were first commenced on
J *the — day of August 1810 ; but no attachment of property was made thereon : on the 19th day of September following, two suits of attachment, in favor of the United States, one against Wellman, and one against Ropes, issued in due form of law, directed to the marshal of the district, or his deputy, returnable to the district court to be held in December then next ensuing.
On the 11th of October, in the same year, the goods, wares and merchandise before mentioned, being in custody of Bartlett, a sheriff of the county, and in a store hired by him for the purpose, Sprague, one of the appellants, and deputy of Prince, the marshal, after the refusal of the sheriff to open the store, forcibly broke into it and seized, attached and conveyed away the property which had been attached by the sheriff in the manner before stated, by virtue of the executions and writs of attachment in behalf of the United States, and disposed of it in satisfaction of the judgments.
Wellman & Ropes continued in business until the aforesaid 4th day of J une, and then failed ; and then were, and ever since have continued to be, debtors unable to pay their debts. Wellman has continued at his usual place of abode in Salem, ever since his failure, and has not for any whole day confined himself within his house, but has sometimes kept his person within doors, and had his doors fastened, and occasionally used other vigilance and caution to avoid any arrest of his person, for two or three weeks next following the said 4th day of June, but has never been arrested by any officer, or pursued for that purpose : Ropes has always continued at large in Salem, and has never confined or concealed himself from his creditors at any time.
(a) March 16th, 1814.
Prince v. Bartlett.
An action of trover was commenced by Bartlett, the sheriff, for the property by him attached as aforesaid, against Prince and Sprague, who had thus forcibly dispossessed him of it, in the court of common pleas in Essex county, where, upon trial, judgment was rendered in favor of the defendants. An appeal was prayed and granted to the supreme judicial court of the commonwealth of Massachusetts, and at November term 1811, the cause came on to be tried upon the facts before stated. Upon the plea of not guilty and issue, *the counsel for Prince and Sprague insisted, that the several matters so alleged and proved in evidence on their part, ■- was sufficient to maintain the issue on their part, and to bar the plaintiff of his action. This was denied by the counsel for the plaintiff, and the judge who sat on the trial delivered his opinion to the jury, that the several matters produced and proved on the part of the defendants, were not, upon the whole case, sufficient to maintain the issue on the part of the defendants, and to bar the plaintiff of his action. With this direction, the jury found a verdict for the plaintiff, and 110,240.69 damages. To this opinion of the court, an exception was taken, and the proceedings removed by writ of error to this court.
The sole question for the consideration of this court is, whether the priority to which the United States are entitled by law, attaches in this case ? This priority is given by the 5th section of the act of the 3d of March 1797, ch. 74. It is also given by the 65th. section of the collection law, in the words following : “ And in all cases of insolvency, or where any estate in the hands of the executors, administrators of assigns shall be insufficient to pay all the debts due from the deceased, the debt or debts due to the United States on any .such bond or bonds shall be first satisfied.” In the same section, the legislature explain their meaning of insolvency, by declaring that it shall be deemed to extend as well to cases in which a debtor, not having sufficient property to pay all his debts, shall have made a voluntary asssignment thereof, for the benefit of his creditors, or in which the estate and effects of an absconding, concealed or absent debtor, shall have been attached by process of law, as to cases in which an act of legal bankruptcy shall have been committed.
At present there is no existing bankrupt law in the United States ; but in many of the states, provision is made by law for the relief of insolvent debtors. In the act of congress of the 4th of August 1790, the word insolvency only is used. In the acts lately passed on the same subject, the words insolvency and bankruptcy *are both adopted and appear to be used as synonymous terms. *•
It is admitted, that the property seized by the attachments and executions before stated, was insufficient to satisfy the several claims exhibited, and that Wellman & Ropes were unable to pay their debts, but it does not appear, that their property was attached, as the effects of absconding, concealed or absent debtors ; nor does it appear, or is it even alleged, that they or either of them have made a voluntary assignment of their property for the benefit of their creditors ; nor is it alleged, that either of them has committed an act of legal bankruptcy. It appears to be the true construction of the act, to confine it to the cases of insolvency specified by the legislature. Insolvency must be understood to mean a legal and known insolvency, manifested by some notorious act of the debtor, pursuant to law : not a p. 268vague allegation, which, in adjusting conflicting claims of the United States and individuals, against debtors, it would be difficult to ascertain.
The property in question being in the possession of the sheriff, by virtue of legal process, before the issuing the writ on behalf of the United States, was bound to satisfy the debts for which it was taken ; and the rights of the individual creditors, thus acquired, could not be defeated by the process on the part of the United States, subsequently issued. The court is of opinion, that priority does not attach in this case, and that there is no error in the judgment of the supreme judicial court of the commonwealth of Massachusetts.
Judgment affirmed.
The St . Lawr ence , Webb , Master.
Trade with the enemy.—Suppression of papers.
A vessel sailing to an enemy’s country, after knowledge of the war, and taken, bringing from that country a cargo, consisting chiefly of enemy goods, is liable to confiscation as prize of war. Suppression of papers, where it appears to have been intentional and fraudulent, and attended with other suspicious circumstances, is good cause for refusing further proof. But where the suppression appears to be owing to accident or mistake* and no other suspicious
circumstances appear in the case, further proof may be allowed. The St. Lawrence, 1 Gallis. 467, affirmed.
This was an appeal from the sentence of the United States Circuit
Court for the district of New Hampshire. *The material facts of
J the case were as follows :
The ship St. Lawrence, Silas Webb, master, was captured, on the 20th of June 1813, by the private armed vessel America, and with her cargo, libelled as prize, in the district court of New Hampshire. On the proceedings which were had there, it appeared, that the St. Lawrence, owned by Robert Dickey, of New York, and Hugh Thompson, of Baltimore, arrived at Liverpool, from Sweden, in April 1813, with a cargo of iron and deals. In the month of May 1813, the agent of Dickey and Thompson entered into a contract for the sale of the St. Lawrence, with the house of Ogden, Richards & Selden, of Liverpool, the contract to be ratified or disaffirmed by Dickey and Thompson, and the bill of sale to be executed by them, in case of affirmance, to Andrew Ogden and James Heard, of New York, or either of them. On the 5th of May 1813, a license was granted by the privy council of Great Britain, to Thomas White, of London, and others, permitting them to export, direct to the United States, an enumerated cargo, in the St. Lawrence, provided she cleared out before the last day of that month. On the 30th of May 1813, she sailed from Liverpool for the United States, with the cargo specified in the license, Mr. Alexander McGregor and his family were passengers on board.
Upon the return of the monition in the district court, Andrew Ogden interposed a claim, in behalf of himself and McGregor, to the ship and part of the cargo. He also claimed another part of the cargo as his sole property. He likewise interposed a claim in favor of Selah Strong & Son ; of John Whitten ; of the firm , of Howard, Phelps & Co. ; of Abraham and George Smedes; of Peter and Ebenezer Irving & Co. ; of Henry Van Wart; of Irving & Smith ; of Jabez Harrison ; of Hugh R. Toler; and p. 269of Thomas C. Butler. This claim was an affidavit of Mr. Ogden, in which he swore that he had not a full knowledge of the concerns of all the persons from whom he claimed, but verily and fully believed that many of the said goods on board the St. Lawrence were sent in payment of debts due, previous to the war, to several of the persons for whom he claimed. This claim was filed on the(17th of August 1813.
*William Penniman, of Baltimore, also interposed a claim for five chests of merchandise, which he swore were purchased for him by L John Barnet, of London, prior to the war, with funds which he had in England eighteen months before the declaration of war, and in pursuance of orders given by him, nine months previous to that event. He also swore that he had at Baltimore, the original invoice of the purchase of said goods, and other documentary evidence to prove the aforesaid fact.
There was also a claim of the master for two cases and five trusses of merchandise, and six bolts of Russia duck. In none of these claims was there a designation of the marks or numbers of the casks, bales or cases which belonged to the different parties for whom the property was claimed.
The master, in answer to the 12th standing interrogatory, said, that for the names of the respective laders, he referred to the bills of lading. That the goods were mostly, if not all, consigned “ to order.” That the goods were to be delivered to order, at such place as the owners or consignees should appoint ; but that he did not know what interest any of the consignees or the shipper might have in the goods. In answer to the 16th interrogatory, the master stated, that his letter-bags, two in number, had been taken possession of, and sent to the custom-house : and that, as to any letter he had, directed to the consignees or owners, he had done what he had a right to do ; and that all his other papers had been forcibly taken away.
By Mr. McGregor’s answer to the 9th interrogatory, it appeared, that he was interested one-half part in the ship ; that his sole object in becoming interested in the ship was that of returning to the United States ; that he also owned one-half of the copperas and of the earthenware on board, shipped by Ogden, Richards & Selden, and as he believed, one-half of the coal, but that, as to the last article, he was not positive, no invoices of said goods having been delivered to the deponent.
*In relation to the vessel, Mr. McGregor deposed, that the only [-¡¡¡.„u document relative to the sale of the ship, he believed to be a letter to the former owners, from their agents, requesting them to make a bill of sale transferring said ship to Andrew Ogden and James Heard, or either of them, which he gave to Andrew Ogden.
It appeared further, from the examination of Mr. McGregor, that he was born in Scotland, was naturalized in the United States in 1795, had lived, the last seven years, in Liverpool, and was returning in the St. Lawrence, with his family, to the United States.
The goods claimed by Ogden as his sole property, were shipped by the house of Ogden, Richards & Selden. The two gentlemen last named resided at Liverpool.
The district court condemned the St. Lawrence and all the cargo, except the parts claimed by McGregor and the master. Both parties appealed from this decree to the circuit court, where the ship and whole cargo were condemned. From this decree, the claimants appealed to the supreme court, p. 270where the cause was argued by Irving and Webster, for the claimants, and Pitman, for the captors.
Irving, for all the claimants, except McGregor and Penniman.—It is contended, on the part of the claimants generally—
1. That the ship St. Lawrence, being an American vessel, owned and navigated wholly by citizens of the United States, and being on her return to the United States, with a cargo owned wholly by American citizens, could not legally be subject to capture by American cruizers.
2. That the character of an American citizen, whether native or naturalized, is not rendered hostile, by his residence in a hostile country, if, within a reasonable time after the declaration of war, he withdraws with his funds from the hostile country and returns to his own : and that he has a right so to withdraw. *40ci *3. That a citizen of the United States, not resident in the enemy
J country, has also a right, after the declaration of war, to withdraw his funds, within a reasonable time, from that country.
4. That if the courts below were not satisfied that the property claimed was, bond fide, property of American citizens, fairly purchased and shipped, the said courts ought to have let the claimants into further proof fully to establish that fact ; and as they refused so to do, that the claimants are entitled, in this court, to the same privilege. The argument will be confined to this last point.
It will probably be urged, on the part of the captors, that the secreting of papers by the master, is good ground for refusing us further proof. We contend, that as the master was only the agent of the claimants to navigate the ship, his act is not sufficient to justify the court in such refusal. On this point, the court is referred to the following authorities. The Concordia, 1 Rob. 100, 119 ; The Hoop, Ibid. 109, 129 ; The Rernon, Ibid. 86, 102 ; The Polly, 2 Ibid. 296, 362 ; Chitty’s Law of Nations, App. 303 ; The Rising Sun, 2 Rob. 87, 104. The last case goes also to show that a claim may be made by an agent: and that too, without clearly distinguishing the rights of each particular claimant. See also, Ie Caux v. Eden, 2 Doug. 614.
Webster, for McGregor and Penniman, several claimants.—1. McGregor claims half the ship and part of the cargo. We contend, that a distinction is to be taken between an American citizen, domiciled in England at the breaking out of the war, withdrawing his funds, and an American citizen who goes to England, after the declaration of war, for the same purpose. That the former, whether a native or naturalized citizen, has a right (and perhaps it is his duty) to return to the United States with his effects. If he has no such right, why should the law of nations have provided a reasonable time for removing, in case of war? This rule of the law of nations *4qq-| *has been founded upon the necessity of the case, and upon the hardship which would attend the want of such a rule. A citizen of one country may lawfully go to any other country, in time of peace, and take up his residence there ; and it would be very hard, if he must suffer by the sudden and unexpected breaking out of a war—an event over which he had no control. A neutral would be permitted to withdraw his funds, in such a case ; and if we should allow the privilege to neutrals, why should we deny it to our own citizens ? The Vigilantia, 1 Rob. 1 ; Rell n . Gilson, 1 Bos. p. 271183 4] OF THE UNITED STATES. 439
&Pul. 355. The case of JEscott, cited in The Hoop, 1 Rob. 165, 196, may perhaps be thought to make against our claim. But the cases are not alike. In that case, Escott sent for his property : here, McGregor came with his.
A character gained by residence, is lost by non-residence. When McGregor ceased to reside in England, his character, if hostile before, no longer continued hostile. That it was not his intention to continue his residence in England, is clearly evidenced by his actual return to the United States with his family.
With regard .to his half of the ship, we contend, that if he had a right to return, he had a right to use the means necessary for that purpose ; he had a right to purchase a ship for the conveyance of himself and his family. So, if it was lawful for him to withdraw his funds, he might lawfully invest those funds in merchandise, if he could not otherwise withdraw them. The Madonna deUe Gracie, 4 Rob. 161, 195 ; The Indian Chief, 3 Ibid. 17, 12 ; The President, 5 Ibid. 248 ; The Ocean, Ibid. 84, 90 ; The Diana, Ibid. 60.
2. As to Penniman’s claim, we shall, at present, merely ask the court to allow us further proof.
Pitman, contra, contended, 1. That there was no legal evidence that the cargo belonged to the claimants, as claimed., 2. That from the origin and character of the voyage, and suppression of papers, concealed enemy interests were to be presumed ; that, therefore, all right to further p* .. „ *proof was forfeited, and that condemnation of the whole, as enemy’s property, must, ensue. 3. That the ship, at the time of capture, belonged to Dickey and Thompson, and was liable to condemnation on the ground of having gone to Liverpool, in April 1813, with a cargo of iron and deals, as well as from the circumstances of the voyage upon which she was captured. 4. That the ship and cargo, whether belonging to citizens or enemies, being taken in trade with the enemy, were clothed with a hostile character, and therefore, liable to condemnation.
Some other points were also touched upon in the course of the argument, viz : The want of proper claimants, of definite claims, and the requisite affidavits to support them. ' The connection of Ogden with a house of trade in the enemy country : the presumption that the partnership was, in fact, interested in what he claimed as his sole property ; and that he must be considered as a British merchant, in regard to those transactions originating with his house in Liverpool. The national character of McGregor, which presents' itself in the case of The Venus. The presumption that Van Wart resides in England, the claim being by Ogden for Irving and Smith, of New York, his consignees : and the effect of the license.
Tuesday, March 15th, 1814, the case was submitted, without further argument: and on—
Wednesday, March 16th (Absent, Marshall, Ch. J.), Livings ton , J., after stating the facts of the case, delivered the opinion of the court, as follows :—
*From the manner in which the appellants have argued this r*. cause, it does not appear that they are very sanguine in their expec- L tations of our reversing the decree of the circuit court, on the evidence on which that court and the district court proceeded ; but that their chief hope p. 272is derived from the further proof which they have it in their power to produce, provided an opportunity be afforded them for that purpose. Except as to the property claimed by Mr. Penniman and Mr. McGregor, this court does not perceive how the circuit court could have done otherwise, upon the proof before it, than confiscate the cargo of the St. Lawrence, as prize of war. Without meaning to decide, at present, on the right of an American citizen, having funds in England, to withdraw them, after a declaration of war, or of the latitude which he may be allowed in the exercise of such a right, if it exists, we think the evidence would have justified the court in considering this property as belonging to enemies of the United States.
The St. Lawrence had gone to England, after the war was known, and had sailed from a British port, nearly one year after war had been declared : she was loaded in the country of the enemy, and by persons carrying on trade there : she was furnished with a British license, which extended both to British and American property : and the bills of lading, not being in a very common form, were well calculated to excite suspicion. But these circumstances, strong as they are, might, if everything had been fair, have been so explained as to have convinced the court that the property was truly American. Was this done, or even attempted ? If we look at the conduct of the master and the claimants, we find them both acting in a way which left the court no other safe conclusion but that the cargo of the St. Lawrence was enemy property. The master, instead of delivering to the captors, or bringing into court the letters to the consignees, which, no doubt, covered invoices and bills of lading, lets us know, in a way not to be misunderstood, that he had delivered or sent them to the parties to whom they were addressed. Taking his examination, with the usual course of business, which is to accompany every shipment with a letter, no doubt can remain, that such letters were not only on board, but that they have been regularly received by the respec*4421 ^ve Consignees ; for it is not pretended by the master, that they J were taken from him by the captors. Here, then, is not only a subduction of very important papers by the master, but an acquiescence in such conduct, on the part of the consignees, and a continued suppression of the same papers, to this day. The only proof, then, which the court had of the interest of the claimants, except of Mr. Penniman’s, the master’s and Mr. McGregor’s, is in the claim of Mr. Ogden, who states, that he is not acquainted with their concerns, but believes they had an interest in the cargo ; without, however, attempting to designate the packages belonging to either of them. The court below, therefore, might fairly considei’ the claimants as having not only failed in making out a legal title to the property, but as concealing papers which would have shown a title elsewhere.
But if there was a defect of proof below, it is thought the claimants are entitled to time for further proof ; and that, if this be allowed, they will be able to show that the property in question was purchased, with American funds which were in England previous to the war, and that the claimants were the true and bond fide owners thereof. It is certainly not a matter of course, in this court, to make an order for further proof. When the parties are fully apprised of the nature of the proof which their case requires, and have it in their power to produce it, an appellate court should not readily listen to such an application : but when it appears that the parties who ask this indulgence have most pertinaciously withheld from the court, letters and other documentary testimony, which must be supposed, in this particular case, to have been in their possession, they come with a very ill grace to ask for any further time to make out their title. But if we examine the affidavits which have been made to obtain further time, we shall find them all silent as to the papers which they must have received by the St. Lawrence ; for in not one of them is a letter of that kind, or an invoice, mentioned ; nor do they deny that such letters or invoices were received by them. Under such circumstances, this court thinks that it cannot, consistent with the circumspection with which such applications ought always to be received, allow the appellants time for further proof. The master’s adventure, it is said, has been given up.
*Of Mr. Peniman’s claim the court thinks more favorably. In «¡.a the claim which he filed personally, he not only swears that the prop- L erty belongs to him, but states very particularly how and when it was purchased. He states, further, that the original invoice and other documentary evidence were at Baltimore; and in the affidavit made by Mr. Campbell,, during the present term, there is such a full and distinct history given of this whole transaction, founded upon original letters and bills of exchange,, that it is impossible to harbor one moment’s doubt, that the five chests of merchandise claimed by Mr. Penniman, did, at the time of shipment, and long before, belong to- him. To this affidavit is also annexed the original letter and invoice which he received by the St. Lawrence, which must dissipate every doubt on the question, if any had previously existed. Where so strong a case is made out, the court is willing to impute to accident or mistake the non-production of these papers below. Perhaps, Mr. Penniman thought he did sufficient, in stating they were in his possession. Certain it is, he could have no motive for suppressing papers which would have established so conclusively his title to the merchandise which he claimed. The court, therefore, allows him until next term, to make proof, by affidavit and the production of documents, of his right to the property claimed, at the time of its shipment at Liverpool; and the same indulgence is allowed tO' the captors.
In regard to the' claim of McGregor to a part of the cargo, there is also’ some difference between his case and that of many others of the claimants. He swears positively to his interest, but that no invoice was delivered to him by the shippers, Ogden, Richards & Selden. Ogden also swears to the interest of Mr. McGregor. Perhaps, this testimony is sufficient to satisfy a court, as it did satisfy the district court, that the property really belonged to Mr. McGregor. But if that be the case, other questions will arise, of too much importance to be decided on the last day of the term, and when the court is not full. Whether an American citizen has a right to withdraw his funds from the country of a belligerent, after a war; or, if he have, whether he have a right to charter a vessel for that purpose j and, if he may go thus far, whether he may bring British *goods, on freight, to this country, p* without affecting thereby the safety of his own goods ; are questions *- which the court does not now decide, and will, therefore,, suspend, at present, giving any final opinion on the claim of Mr. McGregor to a part of the cargo ; who, in the meantime, is also at liberty to make further proof on the same points with Mr. Penniman ; the captors having the same right.
It may be well doubted, whether Mr. Ogden and Mr. McGregor have 8 Cran cii —18 2.73
(no text on this page in the source reporter)
any title to the St. Lawrence : but whether she belong to them or to Messrs. Dickey and Thompson, her fate seems necessarily involved in the decision of The Rapid, which was made this term. She went to England, since the war, and is taken, bringing a cargo from that country. If the whole of the cargo had belonged to Mr. McGregor, or any other American returning with his property to the United States, the court means not to say, whether it would or would not have been cause of forfeiture : but when we find but a small portion of the cargo in that predicament, there can be no escape for her. The St. Lawrence was certainly guilty of trading with the enemy ; and being taken on her way from one of his ports to the United States, she is liable, on that ground, to be confiscated as prize of war, to whomever she might belong at the time.
Upon the whole, the sentence of the circuit court is affirmed in all its parts, with costs ; except so far as it condemned those portions of the cargo which were claimed by Mr. Penniman and Mr. McGregor, respecting which this court will advise until the next term.1
The Hira m , Barke r , Master.
Enemy's license.
'Sailing on a voyage, under the license and passport of protection of the enemy, in furtherance of his views or interests, constitutes such an act of illegality, as subjects the ship and cargo to condemnation as prize of war.
.Sailing with a cargo of provisions to the port of a neutral, who is the ally of our enemy, in his war with another power, is such a furtherance of the views of our enemy. 'The Hiram, Fisher’s Pr. Cas. 69, reversed.
This was a case of capture, as prize, by the private armed brig Thorn, «duly commissioned by the president of the United States, and commanded by Asa Hooper, Esq. * _ *The Hiram, owned by Samuel G. Griffith, an American citizen,
J sailed from Baltimore, on or about the 24th of September 1812, with ;a cargo of flour and bread, on a voyage to Lisbon. She was captured on the 15th of October following, and sent into Marblehead, in the district of Massachusetts, for adjudication. She was libelled in the district court for the said district, by the .captors. The vessel was claimed by Barker, the master, in behalf of Samuel G. Griffith ; and the cargo by the supercargo, in behalf of said Griffith and various other shippers, American merchants, at Baltimore.
Among the papers found on board the Hiram, at the time of her capture, were certain papers commonly called a British license or protection, being a certified copy of a letter from Admiral Sawyer to Andrew Allen, Esq. late British consul at Boston, and an additional letter of safe-conduct from Mr. Allen. It appeared from the evidence, that this license was purchased from a citizen of the United States, and that apart of it was not filled up at the time of the purchase ; and that such licenses were a common article of sale in Baltimore and other places.
There was also found on board, the owner’s letter of instructions, in p. 275which the supercargo was directed to remit the proceeds of the cargo, in bills of exchange or government bills, to the shipper’s correspondents in Liverpool; and moreover to sell the vessel at Lisbon, if an advantageous sale could be made, and remit the proceeds to England. It appeared from the evidence in the cause, that such remittances in bills of exchange were common among merchants.
1
For a further decision on this claim, see 9 Cr. 120.
The captors claimed condemnation of the vessel and cargo, 1. Because of the British protection or license. 2. Because the remittances were directed to be made in England, in bills of exchange. The district and circuit courts both decided, that *neither the vessel nor cargo were liable to condemnation; but allowed the captors their expenses.1 From the decree of the circuit court, both parties appealed.
Swann, for the claimants.—The opinions delivered in the cases of The Aurora and The Julia may, perhaps, upon first view, be considered as deciding the present case : but upon a closer examination, it will be found that the facts in this case differ materially from those which appeared in the two former. In the first place, in the case of The Aurora, there was an intent to supply the enemy ; there was an intent to trade with the enemy : there was a direct violation of the act of congress of 6th July 1812 : but here, there was no such violation. The license, in this case, was merely to trade with the neutral ports of Spain and Portugal. The present case differs from that of The Julia, inasmuch as the claim here is for the cargo only, and the license is for the vessel; whereas, there, the license extended as well to the cargo as the vessel.
But these papers do not, in fact, import a license : they only intimate an intended forbearance, on the part of Great Britain, to molest a lawful trade to Spain and Portugal. Here was no sailing under the protection of Great Britain. Again, this license, as it is called, was purchased as an article of commerce, from a private individual; not from Admiral Sawyer, nor from Mr. Allen : it is only a copy of Admiral Sawyer’s letter, certified by Allen. The obtaining such a copy of the letter was not unlawful. Besides, there is no evidence that Admiral Sawyer ever gave the directions mentioned in his letter, to the commanders of the squadron under his command, not to molest American vessels laden and bound as therein described. Indeed, his power to give such instructions does not appear : and if further proof be allowed, we can prove that licenses of this description were, in fact, disregarded in other cases.
* Dexter, contr&.—In answer to the argument, that the license in this case related to the vessel only, while the claim is for the cargo alone, it may be observed, that the owners of the cargo were the owners of the license, which ought, therefore, to be considered as extending to the cargo as well as to the vessel. The license was undoubtedly intended as a protection. The voyage was clearly undertaken in furtherance of the views of the British government, as expressed in Admiral Sawyer’s letter annexed to the pass : and I understand the ground of the decision in the case of The Aurora to be, that she sailed under the protection, and in furtherance of the views, of the enemy.
’For the opinion of Judge Dav is in the district court, see Fisher’s Prize Cases 69.
But if the court should not consider the sailing under the license sufficient cause of condemnation, we contend, that this was also a case of indirect trade with the enemy ; inasmuch as the proceeds of the cargo weie directed by the owner to be remitted from Lisbon to Liverpool, in bills of exchange.
Swann, in reply.—Buying a bill of exchange’ on England is not trading with the enemy. A man may, in an enemy country, purchase a ship from a neutral. The Countess of Lauderdale, 4 Rob. 232, 283. Sailing under an enemy’s pass, without trading with the enemy, is no cause of condemnation. There was not, in this case, such a subserviency to the views of the enemy, as ought to subject the property in question to the sentence prayed for by the captors. It is certainly lawful for the enemy to relax the rights of war : he may lawfully declare that he will suffer certain vessels to pass : and we conceive, that if those vessels sail under the faith of such a declaration, it is no cause of condemnation. The enemy might have declared, that he would not capture any vessel navigated wholly by Boston seamen ; but surely our government would not condemn a vessel for sailing under the faith of such a declaration.
*4481 *Wednesday, March 16th, 1814. (Absent, Marshall, Ch. J.)
J Washi ngton , J., delivered the opinion of the court:—This vessel was the property of Samuel G. Griffith, an American citizen. On or about the 24th of September 1812, she sailed, with a cargo of flour and bread, from Baltimore to Lisbon ; and on her voyage thither, was captured, on the 15th of October following, by the privateer brig Thorn, and brought into the district of Massachusetts, where she and her cargo were libelled as being enemies’ property.
The brig was claimed by the master, in behalf of Griffith, and the cargo, by the supercargo, as belonging to the said Griffith, and other shippers, being American merchants of Baltimore. Among the papers found on board of this vessel, at the time of the capture, was a letter from Admiral Sawyer, dated the 5th of August 1812, addressed to Andrew Allen, jun., as British consul for the states of Massachusetts, New Hampshire, Rhode Island and Connecticut, which states, that, being aware of the importance of insuring a constant supply of flour and other dry provisions to Spain and Portugal, and to the West Indies, he should give directions to the commanders of his majesty’s squadron under his command, not to molest American vessels, unarmed, and so laden, bond fide bound to Portuguese or Spanish ports, whose papers should be accompanied with a certified copy of that letter, under the cohsular seal of the said Allen ; also a letter from the said Allen, dated 15th September 1812, addressed to all the officers of his majesty’s ships of war, or privateers belonging to subjects of his majesty, reciting that it is of vital importance to continue a full and regular supply of flour and other dry provisions to the ports of Spain and Portugal, or their colonies, and that, in consequence thereof, it has been thought expedient by his majesty’s government, that every degree of protection and encouragement should be given to American vessels so laden, and bound to the ports of Spain and Portugal, or their colonies, and that, in furtherance of these views of his majesty’s government, Admiral Sawyer had directed to him a letter, dated the 5th of August 1812 (a copy of which is annexed), p. 277with instructions to furnish American vessels, so laden and destined, *with a copy of his letter certified under his, the said Allen’s, consular seal, which documents are intended to serve as a perfect safe-guard and protection to such vessel in the prosecution of her voyage ; and that, in compliance with such instructions, he has granted to the American brig Hiram, whereof John B. Barker is master, now lying in the port of Baltimore, and laden with flour and bread, bound bond fide to Lisbon, a copy of the said Admiral Sawyer’s letter, certified under his consular seal, requesting all officers of his majesty’s ships of war, or of private armed vessels belonging to subjects of his majesty, not to offer any molestation to the said vessel, but, on the contrary, to grant her all proper assistance and protection on her passage to Lisbon, and on her return from thence to her port of departure, laden with salt, or in ballast only.
Under an order calling upon the different claimants to give further proof relative to the; British license found on board the brig, when and where it was obtained, of whom, and by whom, and on what terms, and, generally, relative to all facts and circumstances concerning the procurement of the same, William Hartshorn made an affidavit, stating that he purchased for Mr. Griffith, the owner of the vessel, in September 1812, from John R. Waddy, of Virginia, but then in Baltimore, a citizen of the United States, a license to protect a vessel laden with provisions and bound to Lisbon, from capture by British cruizers, for which he was to pay one dollar per barrel for what the vessel would carry, payable, $500 in cash, and the balance on the safe arrival of the vessel at Lisbon : that the said license was in blank, for inserting the names of any vessel and master : and that the blanks in the said license were filled up in his presence. This witness, as well as others, states that these licenses form an article of traffic in market, as much so as flour.
The vessel and cargo were acquitted in the district court, and a pro forma decree of affirmance made in the circuit court; from which decree, an appeal to this court was taken.
In the case of The Julia, decided at this court, it was laid down in general terms, “ that the sailing on a voyage, under the license and passport of protection of the *enemy, in furtherance of his views or interests, constitutes such an act of illegality as subjects the ship and cargo to L confiscation as prize of war ; ” and as explanatory of the general reasons for that opinion, a reference was made to the opinion of the learned judge who decided that case in the circuit court. It is contended by the counsel for the claimants, that the facts in this case differ so materially from those which appear in the case of The Julia, that the principles of law which ruled that case are inapplicable to this, and, consequently, ought not to govern the decision of the court upon it.
There certainly are some differences in the two cases ; and these were considered sufficiently strong by the district judge who acquitted this vessel and cargo, to condemn the Julia and her cargo. The important circumstance which appears to have influenced the decision of the district judge in that case, was, that the license contemplated the means of insuring a constant supply of dry provisions to the allied armies in Spain and Portugal, and consequently, an unlawful connection with the enemy to supply his armies, and a subserviency to the interests of that enemy. In this case, nc p. 278such views are expressed in the license of Admiral Sawyer ; yet the court must be wilfully blind, not to see that this was, in reality, the object of Admiral Sawyer and of Mr. Allen, and that it must have been so understood by those who sailed under this license.
In both cases, the allied armies were to be supplied, not by sales made directly to their agents (for this'is not required by either), but by carrying supplies to the Peninsula, which would indirectly come to their use. The license, as well as the letter of Allen accompanying it, points out the great importance of such supplies being sent to Spain and Portugal ; and the latter adds, that, in furtherance of these views of his majesty’s government, he had been directed by Admiral Sawyer to furnish a copy of his letter to vessels so laden and destined. Can it be said, that an American citizen, sailing under the protection of papers professing such to be the views of the British *a ii government, does not act in such a manner as to subserve *the views
J and interests of the enemy ? Upon the whole, the court is of opinion, that there is no substantial difference between this case and that of The Julia ; and that this is fully within the principle laid down by this court in deciding that case, and the reasoning to which it refers.
It was stated on the behalf of the claimants of the cargo, that they ought not to be affected by the illegal act of the owner of the vessel, in sailing under the protection of this license. It is a sufficient answer to this argument, to observe, that, in this case, the court must presume that the license was known to the owners of the cargo, if it was not the joint property of all. It is inconceivable, that the owner of the vessel should expend about $1600 for the protection of a cargo, in which it appears he was not largely concerned, without communicating such an advantage to his shippers, and even requiring some reimbursement, either by demanding higher freight, or compensation in some other way. But what is conclusive on this point, is, that an order for further proof in relation to this license was made, and yet no affidavit or proof is offered by any of the owners, denying a knowledge of these documents being on board. The decree must be reversed, and the vessel and cargo condemned to the captors as prize of war.
Decree reversed.
The Jos eph , Sarg ent , Master.
Prize.—Hostile trade.
Case of hostile trade. Not excused by the necessity of obtaining funds to pay the expenses of the ship; nor by the opinion of an American minister, expressed to the master, that by undertaking the voyage, he would violate no law of the United States.
If an American vessel be captured on a circuitous voyage to the United States, in a former part of which voyage, she had been guilty of conduct subjecting her to confiscation, though at the time of capture, she is committing no illegal act, she must be condemned. Where the termini of a voyage are already fixed, the continuity of such voyage cannot be broken,.
by a voluntary deviation of the master, for the purpose of carrying on an intermediate trade. A capture as prize of war may lawfully be made within the territorial limits of the United States, at any place below low-water mark. The Joseph, 1 Gallis. 545, affirmed.
This was the case of a vessel, the Joseph, owned by American citizens, captured by the privateer Fame, on tho 16th of July 1813. The Joseph sailed from Boston, with a cargo on freight, on or about the 6th of April
1812, on a voyage to Liverpool and the north of Europe, and thence directly or indirectly to the United States. She arrived in Liverpool, and there discharged her cargo ; and on the 30th of June following, with another cargo of mahogany, taken in at Hull, sailed for St. Petersburg, under the protection of a British license, granted on the 8th of June 1812, authorizing *the export of mahogany to St. Petersburg, and the importation of a return-cargo to England. The brig arrived at St. Petersburg, and L there received news of the war* between the United States and Great Britain. About the 20th of October 1812, she sailed from St. Petersburg for London, with a cargo of hemp and iron on freight, consigned to merchants in London; and having wintered in Sweden, in the spring of 1813, she sailed, under convoy instructions from the British ship Ranger, for London, where she arrived and delivered her cargo. About the 29th of May, she sailed for the United States, in ballast, under a British license ; and was captured, on the 16th of July, at no great distance from Boston light-house. She was sent into the port of Salem, for adjudication as prize.
In the district court of Massachusetts, the claim of the owners, Messrs. Dall & Vose, was rejected, and the property condemned to the United States. From this decree, the captors and claimants appealed. In the circuit court, the property was condemned to the captors. From this decree, the claimants and the United States appealed.
It was contended, on the part of the claimants :
1. That it was lawful, in June 1812 (before the war), to take the license to go from England to the north of Europe, and to bring back a cargo to England.
2. That the taking a freight from the north of Europe to England, was from necessity to obtain funds to pay the debts of the ship, the master not having been able to sell the cargo at St. Petersburg for any price.
3. That the opinion of the minister of the United States, at St. Petersburg, who told the master of the Joseph that there was no law against his returning to England, under the protection of his license, and who also sent dispatches by the Joseph to the government of the United States, though he knew of the intention to return to England, and thence to the United States, was, in effect, a license, especially as to the claim of the United States.
*4 . That there was no trade with the enemy, but with neutrals r..«* only ; the freight having been taken on neutral account, in a neutral L territory, and delivered to a neutral house in Great Britain.
5. That if any offence was committed, it was completed upon the delivery of the freight in Great Britian ; and that, therefore, the vessel was not liable to capture or seizure, on that account, in a subsequent voyage from Great Britain to the United States.
6. That if she was liable to seizure for having adopted the character of an enemy vessel, by any act contrary to the allegiance of the owners, yet she was not to be condemened as prize to the captors, as she was voluntarily returning to the United States and her port of discharge, and had actually arrived within the district of Massachusetts. That the capture, therefore, was not the occasion of her being brought in ; so that if she was liable at all, even as enemies’ property, the condemnation must be to the United States as a droit of admiralty. But—
7. That the vessel was not liable to be condemned to the United States, because the declaration of war was, in effect, an invitation, if not a command, to the citizens of the United States, abroad at the time, to return home, and the law allowed reasonable time and way to effect that return.
Pitman, for the captors, contended, 1. That the facts appearing in the case proved a trading with the enemy, which subjected the vessel to confiscation as prize.
2. That the vessel was not captured within the territorial jurisdiction of the United States : that this appeared from the preparatory examinations of the master and the mate, the first of whom stated “ that he was captured in sight of Half-way-rock, off Salem harbor,” which was a marine league from the shore ; and the latter, “ that the vessel was captured about two leagues east from Boston light-house.” *454.1 *$• That, though the fact be admitted, as contended for by the J claimants, yet the captors were authorized by their commission to
capture within the territorial jurisdiction of the United States, on the high seas, which were stated in their instructions as extending to low-water mark.
Wednesday, March 16th, 1814. (Absent, Marshall, C. J.) Wash ing - ton , J., after stating the iacts of the case, delivered the following opinion of the court:—After the decision of this court in the cases of The Rapid and of The Ship Alexander, it is not to be contended, that the sailing with a cargo, on freight, from St. Petersburg to London, after a full knowledge of the war, did not amount to such a trading with the enemy as to have subjected both the vessel and cargo to condemnation as prize of war, had she been captured whilst proceeding on that voyage. The alleged necessity of undertaking that voyage, to enable the master, out of the freight, to discharge his expenses at St. Petersburg, countenanced, as the master declares, by the opinion of our minister at St. Petersburg, that by undertaking such a voyage he would violate no law of the United States, although these considerations, if founded in truth, present a case of peculiar hardship, yet they afford no legal excuse which it is competent to this court to admit as the basis of its decision. See The Hoop, 1 Rob. 167 ; Potts v. Rell, 8 T. R. 554.
The counsel for the claimants seemed to be aware of the insufficiency of this ground, and applied their strength to show that the vessel was not taken in delicto, having finished the offensive voyage in which she was engaged, at London, and being captured on her return home and in ballast. It is not denied, that if she be taken during the same voyage in which the offence was committed, though after it was committed, she is considered as being still in delicto, and subject to confiscation ; but it is contended, that her voyage ended at London ; and that she was, on her return, embarked on a new voyage. This position is directly contrary to the facts in the case. The voyage was an entire one from the United States to England, thence to the north of *Europe, and thence directly or indirectly to J the United States. Even admit that the outward and homeward
voyages could be separated, so as to render them two distinct voyages, which is not conceded, still it cannot be denied, that the termini of the homeward voyage were St. Petersburg and the United States. The continuity of such p. 281a voyage cannot be broken by voluntary deviation of the master, for the purpose of carrying on an intermediate trade. That the going from St. Petersburg to London was not undertaken as a new voyage, is admitted by the claimants, who allege that it was undertaken as subsidiary to their voyage to the United States. It was, in short, a voyage from St. Petersburg to the United States, by the way of London ; and consequently, the vessel, during any part of that voyage, if seized for cohduct subjecting her to confiscation as prize of war, was seized in delicto.
Another objection relied upon by the claimants, is, that this vessel was captured within the territorial limits of the United States. The fact upon which this objection is raised is not clearly established one way or the other. But admit it to be as contended for by the claimants, the law is nevertheless against them. The commission granted to privateers authorizes them to seize and take any British vessels found within the jurisdictional limits of the United States, or elsewhere on the high seas, and to bring them in for adjudication ; and also to detain, seize and take all vessels and effects, to whomsoever belonging, which shall be liable thereto according to the law of nations and the rights of the United States, as prize of war. The first instructions given by the president to the private armed vessels of the United States, define the high seas, referred to in the commission, to extend to low-water mark, with the exception of the space of one league, or three miles, from the shore of countries at peace with Great Britain or the United States. The general expressions of the commission, explained by these instructions, and containing no exception but in relation to friendly powers, prove incontestibly, that all captures as prize of war may lawfully be made within the territorial limits of the United States, at any place below low-water mark.
The court is also of opinion, that there is no weight *in another objection made by the claimants, that this vessel was on her way and •- near to an American port, at the time she was captured. The right of the captor to the property which he may seize as prize of war, is derived under his commission, which is general and unqualified as to place and circumstances, and not from any peculiar merit which he may claim in any particular case. It is not for him to know whether a vessel which has offended against the law of nations, and is apparently destined to a port of the United States, will certainly enter the port: and certainly he is bound by no law to forego the opportunity which chance or his own vigilance may have presented to him to acquire property which, under his commission, he is authorized to appropriate to himself.
Decree affirmed.
The Geot ius , She afe , Master.
Validity of capture.
Question as to the validity of capture; one man only having been put on board; the ship’s papers and the navigation of the vessel being left to the master. Further proof ordered.
Appe al from the sentence of the Circuit Court for the district of Massachusetts.
The Grotius, an American ship, owned by Thomas Sheafe and Charles Coffin, the claimants, sailed from Portsmouth, New Hampshire, March 2d, 1812, on a voyage, according to the shipping paper, from Portsmouth to one or more southern ports, and from thence to one or more ports in Europe, and back to her port of discharge in the United States, and to Portsmouth, if required. She arrived at New York, and sailed from thence, with a cargo for St. Petersburg, and arrived at Cronstadt on the 17th of June 1812. The cargo was owned by American merchants, and was consigned to a house at St. Petersburg. The consignees furnished a return-cargo on the credit of the outward cargo. After the return-cargo was put on board, the French armies having entered Russia, and threatening to approach St. Petersburg, the consignees were apprehensive that their security for the return-cargo might be lost. They arrested the ship and cargo, and would not permit her *..p,-, to *depart, but on condition that she should proceed to London, with
. the cargo then on board, and that the master should sign bills of lading to deliver the property in London, to the order of the consignees ; they stipulating that if they should have obtained payment from the proceeds of .the outward cargo, the bills of lading should be given up to their owners or agents in London, and the cargo then to be at the disposition of the master.
The news of the war between the United States and Great Britain having reached St. Petersburg, the American ships in that port (fifty or sixty in number), with the knowledge and approbation of Mr. Adams, the American minister at the Court of St. Petersburg, sailed for England with British licenses. This was resorted to, as the only course in which it was possible to get home. The Grotius sailed, among others, with such license. Owing to the lateness of the season, she put into Carlscrona, Sweden, where she lay from the 28th of November 1812, until the 25th of March 1813. On the 2d day of May following, she arrived at London, and there discharged her cargo, consisting of iron, hemp and cordage, and on the 17th of June following, departed for the United States, in ballast. On the 29th of July, she was captured by the privateer Frolic, John Odiorne, commander, who put one man on board of her from the privateer. The captain of the Grotius kept his papers and the command of his ship, and navigated her to Boston. On her arrival, she was libelled in the district court of Massachusetts.
In this court, a question was made by the claimants, as to the fact of capture. The master, in answer to the 2d interrogatory, swore that he never considered the ship Grotius to have been taken or seized as prize : that he was present, when an armed schooner under English colors, met with her, the commander of which represented her to be a British privateer called the Bream, and requested him to take on board a man and treat him as a gentleman, until he arrived in the United States, to which he consented.
ci Gilman, the mate, in answer to the 2d and 3d interrogatories, stated, -1 that, until his arrival, he never knew *that the Grotius had been taken
The Grotius.
as prize ; that the master had been ordered on board the schooner, and returned with Very, the man who had been taken on board the Grotius.
Chambers, a seaman, in answer to the 3d interrogatory, stated that the Grotius was met by an armed schooner, under Engligh colors, which obliged the mate of the ship to go on board her, and afterwards sent him back witfy a man who, on the next day, declared himself to be put on board as prize-master, saying that if they should fall in with a French vessel, he should be obliged to show his commission.
The affidavit of Very, the alleged prize-master, confirms the statement of the mate, that the master was ordered on board the privateer, and that he, Very, was directed by his commander, in presence of the master of the Grotius, to go on board as prize-master ; but that the master of the ship was to keep possession of the papers, and to navigate her into port.
In the district court, the ship was condemned to the United States. From this decree, the captors and claimants appealed. In the circuit court, the decree of the district court was affirmed, pro forma, by consent of parties.
Webster, for the claimants, contended,—1. That, in this case, the ship was not captured, only one man having been put on board. That this case was not affected by the decision in the case of The Alexander. That a capture, as well as the bringing the vessel into port after the capture, must be the effect of power, either actual or constructive. That the master of the ship did not know of the intention to capture, nor had he any idea that his vessel was captured, until long after the alleged prize-master was put on board. That there was no agreement to consider it as a capture. And lastly, that there was no bringing in.
2. That the proceeding to London, under the circumstances of this case, was not such a trading with the enemy* as induced a forfeiture of the r4s ship. That it was an act justified by the necessity of the case, there L being no other way to get the ship home; That the master was further justified in acting as he did, by the advice of Mr. Adams, the minister at St. Petersburg, where the ship was, when the war was first known there. The Hetty Cathcart, 1 Rob. 184, 220.
3. That the ship was not taken in delicto ; that there was no trade with the enemy ; that the master merely delivered the cargo in London ; that the voyage was not to be considered as a continued voyage from the United States to Russia, from Russia to England, and from England to the United States, but merely as a voyage from Russia to London.
4. That the privateers of the United States had no authority, either under the prize act or their commissions, to capture American vessels found in circumstances like those of the Grotius ; that is to say, bound directly to the United States, and within two or three days sail of her destined port. That if she was to be condemned at all, it must be as a droit of admiralty, not as prize to the captors. That privateers claim under a grant from the United States, and must be limited by the express terms of such grant, which ought to have a fair construction, and cannot be supposed to extend to cases where there is no risk, no trouble, no labor on the part of the captors. That the grant is to be considered as a reward for their services. That if a vessel is in port, either voluntarily or by stress of weather, she is no subject of capture.
The Grotius.
Pitman, contra, for the captors, contended, that the Grotius was liable to condemnation for having sailed from Russia to England with a British license, after knowledge of the war between Great Britain and the United States, and with contraband of war on board ; that the voyage was to be considered as one continued voyage from Russia to the United States ; that the vessel, therefore, if taken at any time before her arrival in the United States and in a place of safety, must be considered as captured in delicto. *4.ro 1 That the case was analogous to that of a vessel captured *while com-* ing out of a blockaded port into which she had previously slipped by stealth. The Vrow Judith, 1 Rob. 126, 150 ; The Frederick Molke, Ibid. 72, 86. That physical force was not necessary to constitute capture ; that it had been so decided in the case of The Alexander; and that, if any doubt existed in the mind of the court with regard to the capture, it was a case for further proof. That the privateers of the United States were authorized to capture, even within the jurisdiction of the United States.
Dexter, in reply, urged, that although the master of the Grotius had heard of the war, he had also heard of the repeal of the orders in council, and that an armistice was about to be agreed upon, if it had not already taken place ; that, therefore, it was as if they had not heard of the war at all. That, in order to subject a vessel to condemnation, she must be captured in the prosecution of the voyage in which she was guilty of the offence : that the Grotius was not captured on that voyage : that the voyage from Russia to England was to be considered as a distinct voyage, after the completion of which, the vessel was not liable to condemnation for any offence committed on that voyage. That even if the proceeds of the cargo, previously deposited in England, had been on board, at the time of the capture, it would have been no cause of condemnation. That when the cargo was deposited, the offence was deposited with it. Park 239 (Am. ed.); The Rebeckah, 1 Rob. 193, 230, note; 2 Bro. Civ. Law 58, 250, 262.
Wednesday, March 16th, 1814. (Absent, Marshall, Ch. J.) Washi ng - ton , J., delivered the opinion of the court, in this case, as follows :—This case differs in no material respect from that of The Joseph, just decided,, except that in this a question arises as to the validity of the capture. The master of the Grotius, in answer to the second standing interrogatory, swears that he hath never considered the ship to have been taken or seized as prize. That he was present when an armed schooner, under English col* ors’ me^ w^h her, the commander of which represented her *to be a
-• British privateer called the Bream, and requested him to take on board a man, and treat him as a gentleman, until he arrived in the United States ; to which he consented. This testimony of the master is confirmed by Gilman, the mate, in answer to the 2d and 3d interrogatories, who adds, that Very, the man who was put on board, never conducted as prize-master, nor in any other manner than a passenger would, during the voyage. Pierce, one of the seamen, who accompanied the master on board the schooner, swears that he never knew the ship was seized as prize, until after her arrival within the Boston light-house. Chambers, another seaman belonging to the Grotius, in answer to the third interrogatory, says that she was met by an armed schooner, under English colors, which obliged the mate of the ship go on board her, and afterwards sent him back with a man p. 285who, on the next day, declared himself to be put on board as prize-master, saying th at. if she should fall in with a French vessel, he should be obliged to show his commission. That he knows not upon what pretence or for what reasons he was taken, not knowing, in fact, that she was made prize of, until her arrival at Boston.
Daniel J. Very, the alleged prize-master, has deposed, on oath, that he was present at the capture of the Grotius by the Frolic ; that the master of the ship was ordered on board the schooner with his papers ; and that he, Very, was directed by his commander to go on board as prize-master, and this in the presence of the master of the Grotius ; that the master of the ship was to keep possession of the papers, and to navigate her into port. That he accordingly went on board as prize-master, carrying with him a copy of the commission of the Frolic; and instructions, in writing, from the commander to him (Very) as prize-master. That the master of the Grotius informed his crew, that in case a British cruizer should board the Grotius, and they should be asked respecting the said Very, they were to answer that he was a passenger.
Without giving any opinion as to the regularity of admitting the,affidavit of the prize-master as a part of the preparatory evidence, the court is of opinion, that the facts necessary for deciding upon the validity of the *capture, are not sufficiently clear ; and that it will be proper to r4. make an order for further proof, to be furnished by the captors and >• the claimants, with respect to all the circumstances of the capture. This point appears not to have been made or considered in the court below.
Order for further proof.
Alex an der and others v. Pendle ton *
Equity jurisdiction.—Notice.—Adverse possession.
If the case be clear, a court of equity will interpose to quiet the title. A purchaser with notice is protected by his vendor’s want of notice.1 An adverse possession of fifty years, though with knowledge of a better title, constitutes a good defence against that title.
A purchaser without notice, has a right to join his adverse possession to the ostensible adverse possession of his vendor, so as to give himself the benefit of the statute of limitations.
This was an appeal from the Circuit Court for the district of Columbia, sitting at Alexandria, as a court of equity. The case, as stated by Mar - sha ll , Ch. J., in delivering the opinion of the court, was as follows :
This suit was brought in the year 1806, in the circuit court for the county of Alexandria, for the purpose of quieting the title of Nathaniel Pendleton, the plaintiff in that court, to 83 acres of land, contiguous to the town of Alexandria, which had been in his possession, and in the possession of those under whom he claims, from the year 1732 to the present time.
Robert Alexander, being seised of a large tract, on part of which the town of Alexandria now stands, on the 17th of January, in the year 1731-2, executed to Dade Massey, then about to intermarry with his daughter p. 286Parthenia Alexander, his bond, in the penalty of 8004 with a condition that he would convey to his ’daughter Parthenia and her heirs, on demand, four hundred acres of land, lying on Potomac, “ beginning on the river side and from thence running to his back line, making a long square so as to have the same breadth on the river as on the back line.” The marriage soon afterwards took effect, and she was put into possession of the land, by the following bounds, that is to say : “ Beginning at the mouth of Going’s gut, on the * river Potomac, and extending down thè river so *as to include four
1
Bracken v. Miller, 4 W. & S. 102; Mee- McChesney, 7 Cow. 360; Bumpus v. Plainer, 1 han v. W illiams, 48 Penn. St. 238 ; Rounds ». Johns. Ch. 213 ; Wood v. Chapin, 13 N. Y. 509.
-* hundred acres of land between the river and the back line.”
The back line called for in the patent was a due north course ; that by which Robert Alexander then held was north 6° west. Claims have been since successfully asserted which would vary the back line so as to run north 17° west. The appellants insist that those who hold under Parthenia shall be compelled to extend to the back line, as now established, and proportionably to contract their line down the river, so that the parallelogram shall still comprize 400 acres. Pendleton, who is a purchaser under Parthenia, insists on being limited on the west by the line north 6° west, which was the back line when the title of Parthenia accrued.
In the year 1735, Robert Alexander departed this life, having first made his last will, in which he devised as follows : “ Item, I give to my daughter, Parthenia Massey, four hundred acres in Prince William county, according to my bond. Item, I give to my daughter, Sarah Alexander, four hundred acres joining Parthenia Massey, the same length on the back line and the same breadth on the river.” Parthenia survived her husband, Dade Massey, and intermarried with Townshend Dade. Sarah intermarried with Baldwin Dade, and was put into possession of the land devised to her.
John and Gerard Alexander were the only sons of Robert, and were the có-devisees of the bulk of his estate. In April 1740, John instituted, a suit against Gerard for partition ; and to this suit, Townshend Dade and Parthenia, his wife, and Baldwin Dade and Sarah, his wife, were parties defendants. A decree of partition was made, directing that the lands of the Dades also should be allotted to them to be held in severalty. Commissioners were appointed to execute this decree, with directions to report their proceedings to the court. Under this interlocutory decree, the land was surveyed by Joseph Berry, and a division made. Four hundred acres were allotted to Townshend Dade and Parthenia, his wife, and the same quantity *4.fUl Baldwin Dade and *Sarah, his wife. This allotment was made on
-* the idea that north 6° west was the true back line. But as the Alexanders intended to institute suits for the purpose of recovering lands lying west of the north 6° line, it was agreed between all the parties, that the partition then made should not be conclusive, but should depend on the suits about to be instituted. In consequence, as is presumed, of this verbal agreement, the survey and proceedings under this interlocutory decree were not returned ; and in May 1741, the suit was dismissed agreed.
Townshend Dade and Parthenia, his wife, remained in quiet possession of the 400 acres devised to Parthenia by her father, according to those boundaries which had been marked out, on the idea that north 6° west was the true back line.
Sarah Dade died without issue ; on which event, her land was limited to her two brothers John and Gerard, who entered thereon and continued to p. 2871814] OF THE UNITED STATES., 464
hold it according to Berry’s survey. John Carlyle claimed the land west of north 6° west; and, in April 1766, bommenced’an ejectment against Alexander, who appears to have recovered part of the land between north 6° and north 17° west in a previous ejectment against one of his tenants. In May 1771, a verdict and judgment were rendered in his favor.
In the year 1774, Townshend Dade and Parthenia, his wife, instituted a suit against John Alexander, for a title to the land mentioned in the bond of Robert Alexander. To this suit John Alexander filed his answer, stating the death of Dade Massey, leaving a son by Parthenia, her subsequent marriage with Townshend Dade, and the doubt who was entitled to the land, as the reasons for its not having been previously conveyed. In the same year, Charles Alexander, a son and heir of John, filed his answer, in which he states the doubt respecting the back line, admits the north 6° west to be the present back line, and prays that, should a more western boundary be at any time established, he and his heirs might be at liberty to vary the boundaries of Parthenia’s land, so as to conform to such future back line.
*In 1776, a deed was executed by Charles Alexander to Parthenia r*.R(- Dade, conveying 400 acres of land according to the bond of Robert L Alexander. This deed specifies no boundaries and contains no stipulation respecting the future change of the back line. It would confirm the will of Robert Alexander, if that will wanted confirmation. In the year 1779, this suit was dismissed, neither party appearing.
In May 1778, Parthenia Dade conveyed this tract of land, with no othei* description of the metes and bounds than was expressed in the bond and will of her father, to William Hartshorne, who took possession of the land and held it according to Berry’s survey, which makes north 6° west the back line. William Hartshorne laid off the northern part of the tract from the river to north 6° west in twenty-three lots which he sold to various persons ; and then, in May 1779, conveyed the residue of the land, which includes that in the controversy, to William Harman, of Pennsylvania, by metes and bounds, taking north 6° west to be the true back line.
In the year 1786, Mordecai Lewis, executor of William Harman, conveyed this land to Elisha Cullen Dick, who, in 1796, conveyed eighty-three acres, the land now in dispute, to Henry Lee; who, in June 1797, conveyed to Baldwin Dade, who, on the 29th day of December, in the year 1801, conveyed to Philip Fitzhugh, who, on the 18th of February 1802, conveyed to Nathaniel Pendleton. In the same deed, Fitzhugh conveys also to Pendleton three acres of land, other part of the tract of 400 acres, with.notice that Charles Alexander claims north 17° west as the back line.
Previous to the conveyance from Baldwin Dade to Philip Fitzhugh, the said Dade had conveyed the land in controversy to Thomas Swan, to secure a debt due to William Hodgson. Swan conveyed to William B. Page, in trust for Hodgson, who conveyed to Hodgson, who, in July 1803, conveyed to Pendleton.
Soon after the decision in favor of Carlyle, in May 1771, Charles Alexander brought an ejectment for the *same lands, and in 1790, a verdict was given in his favor, on which a judgment was rendered, L which was affirmed on appeal, in 1792. In 1796, Charles Alexander instituted a suit in the court of chancery in Virginia, for the purpose of altering the boundaries by which the land of Parthenia had theretofore been p. 288held, and of laying off that track so as to extend it to north 17° west, thereby narrowing its breadth where it stretches towards the town of Alexandria, and giving it more length. To this suit, those under whom Pendleton claims, with others, were made defendants. Charles Alexander departed this life, in the year 1806, and the suit has not been revived.
Nathaniel Pendleton, being about to sell the land in controversy, tendered to Charles Alexander a deed for quieting the title ; and, on his refusing to execute it, instituted a suit to compel him so to do. After the death of Charles Alexander, this suit was brought against the defendant, his widow and children.
In the circuit court, a decree was rendered in favor of the plaintiff, from which the defendants have appealed to this court.
The cause was argued last term, by Swann and Jones, for the appellants, and by E. J. Lee and C. Lee, for the appellee.
Swann, for the appellants.—The only question is, whether the long possession according to metes and bounds, gives a good title, notwithstanding the claim of Alexander to carry his back line so as to run north 17 degrees west; instead of north 6 degrees west.
The bond to convey to Parthenia in 1731-2, calls simply for the back line ; R. Alexander’s will, in 1735, devises the land to her by the same description ; and the deed of confirmation from Charles Alexander, in 1776, still refers to the back line. Whatever should be the back line of Alexander’s tract, was to be the western boundary of Parthenia’s 400 acres. In *46”! 1^0, a suit was instituted for partition, in which Parthenia was a * -I party. A survey and partition was made, but was not acted upon by the court, because the parties all understood that the back line was unsettled, and the partition then made was agreed to be temporary, and to be reformed, if the back line should be carried farther to the westward than north 6 degrees west. This agreement, although verbal, was binding on Parthenia, at least, so far as to prevent her possession from being considered as adversary to Alexander, as to that part of the land which might be taken away upon settling the back line.
There was, therefore, no adverse possession until 1778, when Parthenia sold to Hartshorne. From 1778 to 1796, when C. Alexander instituted his suit in the court of chancery in Virginia, to alter the boundaries of the tract, there had not been twenty years of adverse possession. If Pendleton had looked back to his title, he would have found that it was never conveyed by metes and bounds, prior to 1778, and that the question of boundary was still unsettled. He purchased while that suit was pending, and therefore, must be presumed to have had notice of the claim.
E. J. Lee and C. Lee, contra.—This case is not affected by the question, which was the true back line of Alexander’s land. Neither Parthenia nor those claiming under her, were parties to any suit in which that question was litigated, and cannot, therefore, be bound by any decision on that point. At the date of the bond, and of Robert Alexander’s devise to Parthenia, he held only to the line north 6° west. The conveyance is to be taken most strongly against the grantor. In 1776,. when C. Alexander made the deed to Parthenia, he held only to the same line, and it had been at that time p. 289established as his back line, by a judgment in the year 1771. If there were sufficient evidence of a parol agreement, it could be only an agreement to reconvey the land, if the back line should be settled further to the westward. Being a parol agreement to convey land, it would have been void by the statute of frauds.
*If Pendleton had notice of the pendency of C. Alexander’s suit p^gg in chancery to alter the boundaries, yet that suit was afterwards discontinued, and there is no evidence that Hartshorne, or those claiming under him, had notice of the claim, until after they had made their purchases. Pendleton holds their rights, and can protect himself by their want of notice.
Jones, in reply.—There was nothing in the title to deceive purchasers. There was sufficient evidence on the face of the deed to show that the possession was temporary. They all refer to the back line of Howsen’s patent; and every purchaser would necessarily inquire where that line was. Upon the inquiry, he would find, either that the line was in dispute and unsettled, or that it had been settled at north 17 degrees west. The agreement was merely evidence of the nature of the possession, and was no more affected, in this respect, by the statute of frauds, than would be a simple declaration of the tenant, that he held not adversely to, but under, R. Alexander. If the title is to be quieted, it must be upon the principle that long possession by certain metes and bounds, induces a presumption that some deed had been made conformable to the possession. But such a presumption is rebutted by the agreement.
March 12th, 1814. Mars hal l , Ch. J., after stating the case, delivered the opinion of the court, as follows :—This being an application to restrain a person from the assertion of title in the ordinary course of judicial proceedings, the prayer of the bill ought not to be granted in a doubtful case ; but if the case be a clear one, the interposition of equity is allowable ; and the situation of the land adjoining a growing city, the number of persons who are consequently interested in the settlement of the question, and the numerous titles which depend *on it, give it peculiar claims to the attention of the court. L
By the laws which govern this case, a possession of thirty years, under some circumstances, and of fifty years, under any, constitutes a title against all the world. The appellee claiming under a possession, perhaps, from the year 1732, certainly, from the year 1741, has a complete title, unless something can be alleged by the plaintiffs in error which shall deprive him of the advantages of that possession. It is urged, that the contract of 1741, between the Alexanders and the Dades, made the latter trustees for the former with respect to that portion of the land included in Berry’s survey, which they had agreed to surrender, in the event of establishing a more western back line. And that, therefore, in computing time, we must commence with the sale from Parthenia Dade to William Hartshorne, in May 1778.
Had the land continued in possession of Parthenia Dade and her heirs, the question whether this contract was of unlimited duration, or contemplated some particular suit then intended to be brought, would merit consideration. But as the contract does not appear on the title papers, but was verbal, a purchaser for a valuable consideration could not be affected by it, p. 290unless he was a purchaser with notice. Finding Parthenia Dade in the quiet and undisturbed possession of 400 acres of land, forming a parallellogram, limited on the west by the line north 6° west, he had a right to consider that line, as established, so far as respected the land of Parthenia. He was not bound to know that a private parol agreement existed, which would control the possession. This trust, therefore, no more passed with the land to Hartshorne, than would any other secret trust of which he had no knowledge.
The various suits which have been instituted by, and against the ancestors of the appellants cannot affect this cause. A suit not prosecuted to a decree or judgment is not constructive notice to a person not & pendente lite purchaser ; and were the law otherwise, those suits, until that instituted in *. 1796, would convey no notice of the *private agreement made in 1741.
J A knowledge of the suits, therefore, would not imply a knowledge of the trust ; and possession for fifty years, though with knowledge of a better title, if adversary, constitutes a good defence against that title.
In 1796, Charles Alexander instituted a suit against sundry persons, ^claiming the land in controversy, for the purpose of altering the boundaries which had been held by Parthenia, and those claiming under her, from the year 1732, and which had been surveyed under an interlocutory decree made by the court of chancery, in the year 1741. In defending themselves against this claim, the purchasers of the land had a right to unite the possession of Parthenia Dade to their possession, without being affected by a secret trust of which they had no notice. If upon the trial of that suit, a possession of ¡fifty years could not have been established, and if the court should have been of opinion, that this was not a case in which an adversary possession of thirty years would have constituted a bar, the merits of the title would have been necessarily investigated. But if Charles Alexander had permitted that suit to be dismissed, and had filed a new bill, he would not have been at liberty, in the computation of time, to avail himself of the pendency of the former suit, unless he could have connected the two suits together. The law is the same, where a suit terminates by abatement and is not revived ; such a suit takes no time out of the act of limitations. The title of Pendleton, therefore, has from that act all the benefit which can be derived from a possession from the year 1741, when a possession, ostensibly adversary, by metes and bounds, unquestionably commenced, to the institution of this suit in the year 1806. The deduction which the laws of Virginia make from all computations of time, in consequence of the war of the revolution, will not be sufficient to take this case out of the act of limitations. The appellee’s title, being secured by a possession of more than fifty years, is unquestionably good, and it is proper, that the doubts which hang over it, should be removed. There is no error in the proceedings of the circuit court, and the decree is affirmed.
Decree affirmed.