APPEAL from the sentence of the Circuit Court for Under the the district of Connecticut, restoring the property to the non-interClaimants.

waters of the the

course act, of 1809, a vessel from Great Britain had a

right to lay off of the coast of the

U. States, to receive in

New York;

case of a storm

prevented by a

of

The American ship Fanny, was laden at Greenock, in Scotland, with a cargo of British goods, the property citizens of the United States, and sailed from thence on the 4th day of July, 1812, after the repeal of the orders structions from in council, and before the war between Great Britain and her owners in the United States was known in Greenock. The orders and if necessato the captain were to proceed to New York; but unless ry, to drop anhe was perfectly sure of being allowed an entrance for chor, and in ship and cargo at New York, he was not to go into the to make a harUnited States, but to send up a pilot boat bor; and if with his letters, so that the consignees might fix upon a mutiny of her port of discharge. The master had no knowledge of the crew from put. war until his arrival on the coast, when he received it ting out to sea again, might off Montaug point, from a pilot boat, who also informed wait in the that several British frigates were off Sandy Hook, cap- United States turing American vessels. Whereupon he despatched the for orders. pilot boat, with letters for his owners by the way of New London. Soon afterwards it became calm and the ship drifting too near the shore he dropped anchor. In the course of the night it came on to blow a gale, and finding it impossible to lay there he attempted to get under weigh and stand off, but before he could get up the anchor and make sail he drifted so far in that he could not fetch Montaug point, and the pilot informing him that there was good anchorage ground in Fort-pond-bay, and that it would not be safe to keep out, he proceeded with the ship to that bay, intending to stand out as soon as the storm abated. Having there cast anchor and rode out the gale, his crew refused to get underweigh to go out of the waters of the United States, alleging that they understood he had a British license, and was going to put his ship

1

υ.

U. STATES under the protection of British ships of war and they were afraid of being impressed. He then determined to come out into the sound and there wait for orders, without going into any port. He did so, but was boarded

THE

CARGO OF

THE

about half way from Fort-pond-bay to the race, Fisher's FANNY. island bearing north, and seized by a revenue cutter, who carried him into New London, where the cargo was libelled for having been shipped in Great Britain with the knowledge of the master, with intent to be imported into the United States, contrary to the provisions of the non-intercourse act of 28th June, 1809, vol. 10, p. 13. In the district Court the cargo was condemned, but was restored by the Circuit Court. From this sentence the United States appealed.

The cause was argued by JONES, for the United States, and DAGGETT, for the Claimants, in the absence of the reporter.

March 1st. Absent....Toon, J.

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

Her

This case bears every feature of fairness. The voyage was undertaken upon the repeal of the orders in council. The vessel was laden in the short space of four days, and sailed without a knowledge of the war. destination was alternative-to New York, if she could enter; if not, to a British port. Upon arriving off Montaug, she receives notice of the war, and of the danger of capture in prosecuting her voyage to New York. A pilot boat is then dispatched to New London by the captain with notice to his owners of his situation, and a request for instructions.

To call off for instructions was fair and justifiable; and to obtain them it was necessary that he should await the return of the pilot boat. Thus circumstanced, a calm obliges him to drop anchor to prevent his drifting on shore, and a storm forces him into a bay for shelter. Whilst there, his crew mutiny, and prevent his leaving the bay, in order to lie off and await the return of his messenger; and whilst plying in the waters between Montaug and New London, he is seized by the revenue u. STATES cutter, and forced into the latter port. We are of opinion that there was nothing either in action or intention which subjected this vessel to municipal forfeiture. A condem- CARGO OF nation is claimed on no other ground; and the decree of of the Circuit Court must, therefore, be affirmed.

v.

THE

THE

FANNY.

The claims of the several parcels of merchandize seized in the Fanny, rest on the same circumstances, and must likewise be restored.

THE FRANCES, BOYER, MASTER,
(Dunham and Randolph's claim.)

1815.

Feb,

18th.

Absent....TODD, J.

IN this case further proof was ordered at the last If a British

term. (See Ante vol. 8, p. 354.)

PINKNEY, for the Claimants.

merchant pur chase, with his own funds, two

cargoes of

goods in consequence of, but

orders

The property vested in Dunham and Randolph by the not in exact shipment. It was made in consequence of, although not conformity strictly in conformity with, their orders; and delivery of an Ameri to the master of the vessel was tantamount to a delive- can house, and ship them to ry to themselves. The invoices and bills of lading all America, givstated the goods to be shipped on their account and risk. ing the Ame

rican house an option within

to take

But if the property did not pass by the shipment, 24 hours after there is no reason why it should not pass in transitu, receipt of his so that it be before capture. It is true that it cannot or reject both vest in transitu so as to defeat a vested belligerent right. cargoes-and if they give noBut if the transfer take place, according to the original tice within the terms of the contract, before a belligent right has accru- time that they ed, it is not within the principle nor the spirit of the cargo, but will rule. If the further proof shows that the property had consider as to absolutely vested in Dunham and Randolph before the the other; this

capture, it must be restored.

will take one

puts it in the power of the British merchant either to

The further proof shows that the invoice, stating the cast the whole shipment to be made for their account and risk, was upon the Ame THE sent to them; and that D. and R. wrote a letter before FRANCES, the capture of the Frances accepting the goods by the (DUNHAM Fanny, and saying that they would consider as to those & RAN- by the Frances.

DOLPH'S

CLAIM,)

The question then is, whether the whole of both carBOYER, goes did not thereby vest, eo instanti, in Dunham and MASTER. Randolph.

rican house, or The documentary evidence is clear and positive; it to resume the behoves the captors to show how it is qualified. property and make them ac

countable for

that which

The condition upon which the property was to vest in came to their the Claimants, was performed before the capture. They hands. The agreed to take the goods by the Fanny, and were inright of prostantly bound to take both shipments. They could not cargo not ac- afterwards refuse that by the Frances. Their letter cepted does not, in transitu, agreeing to take the goods by the Fanny was dated vest in the the 22d of August. The Frances was not captured un

perty in the

American

house, but remains in the

British subject and is liable to condemnation, he being an enemy.

til the 28th.

EMMETT, on the same side.

The surplus of goods, beyond the order was chiefly if not entirely in the Fanny and accepted by D. and R. so that there can be no question on the ground that the goods by the Frances were not ordered.

Dunham and Randolph's letter of 19th of September explains the cause of their partial acceptance.

DEXTER, contra.

This Court has decided that this was a condition preeedent, and that the transfer could not take place until the condition was performed.

The first question is, whether, if the goods were accepted by Dunham and Randolph, either in fact or in law, the property could pass in transitu. The general principle is, that it could not. The question always is, in whom was the right of property at the time of shipment? The simplicity and celerity with which the trial of captures must be conducted require that the question should be limited to the time of shipment. For the

THE

same reason, prize Courts have rejected equitable liens. If it were not so, further proof would be required in FRANCES, every case. 6 Rob. 329-note, Twen Venner Monk. (DUNHAM This rule is reasonable. Possession is evidence of own- & RANership. Change of title in transitu is only an exception DOLPH'S to the general rule. The exception should be confined CLAIM,) to the cases in which it has been held necessary, as BOYER, where possession could not be delivered, &c. The pa- MASTER. pers on board are always sufficient for the captors a prize Court the documentary evidence is all important. This point is settled in the case of the claim of Jones and M.Gee in the Venus at this term.

In

As to the further proof produced in this cause, it is of very little importance. Dunham and Randolph did not comply with the condition upon which the property was to vest in them. They agreed to take a part only, and therefore were not entitled to any. It is immaterial whether this bound them to take the whole or not. It did not bind Thompson. He had a right to refuse to let them have any part, as they had not accepted the whole, or he might insist upon their taking the whole. It was at his option to call upon them to account, as his factors, for the whole. If Thompson had such a right, the captors have such a right, for by the capture they succeeded jure belli to all the rights of Thompson.

The time was past when they accepted the goods by the Fanny; they were in the custody of the law under the seizure of the revenue officers. Dunham and Randolph could only accept them conditionally; i. e. if they should be restored; but if they should be condemned they could not receive them.

It is not credible that they should have received them absolutely at the time they were under seizure. They did notbona fide accept them. It is not to be believed that they would take upon themselves the risk of their condemnation. It was probably done as a cover for the benefit of Thompson. The goods not being according to order they were not bound to accept them. Thompson made a new proposal to them. They did not accept it, but offered new terms on their part to which Thompson did not assent; so that there was no agreement. The property never passed. VOL. IX.

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