THE FRANCES, (DUNHAM & RANDOLPH'S EMMETT, in reply. There are two questions in this cause : 1. The first is a question of fact, did Dunham and CLAIM,) Randolph accept the goods? BOYER, MASTER. 2. The second is a question of law, can such an acceptance change the title in transitu. 1. Dunham and Randolph, relying on the justice of the United States, and that they would protect goods, the property of citizens of the United States, shipped on the faith of the declarations of their agents respecting the effect of the repeal of the orders in council, did bona fide accept them. This appears from their letter of the 19th of September. They had no motive to make the goods appear American rather than British-for in each case they would be equally liable to condemnation. They relied entirely upon the justice of the government. The acceptance of the goods by the Fanny was absolute. The language used in regard to those by the Frances was intended to deceive the enemy, in case of British capture. Thompson had no right to annex the condition to the acceptance. The goods were ordered by Dunham and Randolph. Thompson had agreed to execute the order, and was bound so to do. In shipping the goods he was executing an order, not making a bargain. Dunham and Randolph had a right to take to their own account the goods ordered, and receive the residue as a consignment to sell for the account of Thompson. If the question were now open I should say that these goods never belonged to the shipper. They were purchased by the agent of Dunham and Randolph by their order and for their account. 2. In point of law, what was the effect of the acceptance? The acceptance was good for both cargoes or it was good for neither. Thompson either had or had not a right to annex the condition. If he had not, then the goods were the property of Dunham and Randolph ab initio. If he had a right to annex the condition, they had no right to reject it. They were bound to take all THE or none—if they took part they were bound to take the FRANces, residue. Their reservation of a right to consider as to (DUNHAM the goods by the Frances, was void. The only remain- & RANing question is whether belligerent property can change DOLPH'S in transitu. CLAIM,) Belligerent rights, in derogation of the common law, MASTER. are to be construed strictly. They are not to be extended further than the state of war requires. 5 Rob. 161, Vrow Anna Catharina. The rules of war are not to be changed for the convenience of captors. It is true that the captors are to judge by the ship's papers; but here the ship's papers all shewed the truth of the case; and nothing but a single letter cast any doubt upon it. The rule extends no further than that a neutral title shall not originate during the voyage. If the title originated anterior to the war; if the shipment was made before the war, and not in contemplation of war; and if the condition, upon which the title was to change, was annexed before the war; such a contract could not be in violation of the belligerent rights. Thompson had not an option to hold Dunham and Randolph to the acceptance or not as he pleased. If they did an act which bound them, he was bound also. The acceptance must be considered absolute, and the condition not in derogation of belligerent rights. March 2d. Absent....TODD, J. JOHNSON, J. delivered the opinion of the Court as follows: ces. This claim is interposed to obtain restitution of three bales and nineteen boxes of goods captured in the FranAs early as the 23d of July, 1811, these Claimants, anticipating a repeal of the orders in council, give an order to Alexander Thompson of Glasgow, to ship them a variety of articles. In July, 1812, upon the repeal of the orders in council, Thompson ships the articles ordered; and, originally intending to ship to THE the Claimants, a consignment on his own account, interFRANCES, mingles, with the goods ordered, a variety of others not (DUNMAM contained in the order of the Claimants. These goods & RANare shipped by two vessels, the Fanny and the Frances; DOLPH's and, by a letter dated the 11th of July, 1812, Thompson CLAIM,) advises the Claimants of these shipments; and, after desBOYER, canting on the merits of the articles, and declaring his MASTER, reason for blending other goods with those shipped to their order, and his subsequent determination to make them an offer of the additional goods, he continues in these words: "I leave it with yourselves to take the "whole of the two shipments, or none at all, just as you "please. If you do not wish them, I will thank you to hand the invoices and letters over to Messrs. Falconer, "Jackson and Co. I think twenty-four hours will al"low you ample opportunity for you to make up your "minds on this point; and if you do not hand them over within that time, I will, of course, consider that you take the whole," "You will see, I think the reason"ableness of your taking the whole, or none of the ❝ shipment." The Fanny reached the waters of the United States in safety; and, being seized by a revenue cutter, was carried into New London, where she has been finally restored. The Frances was captured on the 28th of August, by the privateer Yankee, and carried into Rhode Island. On the 22d of August, after the arrival of the Fanny, the Claimants write to Falconer, Jackson & Co. and accept of the shipment by the Fanny; but with regard to that by the Frances, they write in the following words: "His letter also speaks of another shipment of thirty-one "packages per Frances which on arrival we shall then “hand in our determination." On the first of September following, they again write to Falconer, Jackson & Co. intimating their acceptance of the shipment by the Frances. On this state of facts it is contended that the Claimants are entitled to restitution-that they either had an original interest, in the goods shipped, or had acquired one before the capture. In the ordinary course of mercantile transactions, a delivery to a ship-master is a delivery to the consignee, But it is evident that this delivery may be absolute or THE qualified, and that the effect of it must vary according- FRANCES, ingly. A voluntary agent has the option either to enter (DUNHAM upon his agency in strict conformity with the instruc & RAN tions of his principal, or with such reservations or con- DOLPH's ditions as he may think proper to prescribe; and the CLAIM,) only consequence is, that, in the latter case, he leaves BOYER, his principal at liberty to adopt or repudiate his acts. MASTER. The shipper who purchases goods on his own credit or with his own funds, is not acting in the ordinary capaci-' ty of a factor. If he were, the goods, even before shipment, would be the property of the individual on whose order the purchase is made. Such shipments are in the nature of a mercantile credit, and the shipper always retains the uncontroled exercise of discretion in extending it. There was, therefore, nothing inconsistent with the relative rights of the parties, in Thompson's imposing upon the consignees the condition of taking all or none of the two shipments; and the consequence was, that the delivery was not absolute, but qualified; and, until the condition performed, the goods remained the property of the shipper; and had they suffered shipwreck, the loss would have been his. But it is contended that the condition was performed, and that this case forms an exception from the rule that, as to the exercise of belligerent rights, there shall be no transfer in transitu. The acceptance of the cargo by the Fanny was on the 22d, the capture of the Frances on the 28th of August. It is contended that the acceptance of the Fanay's cargo was conclusive as to both shipments; and that, although partial in terms, it must, in law, have effect as to the whole, since such was the condition imposed by the shipper; and that it was, in fact, the intention of the Claimants that such should be the effectTM of the acceptance; but the reservation was intended only as a ruse de guerre to guard against the effects of hostile capture. There is certainly nothing illegal in resorting to de- ̈ vices to elude hostile capture; and where it can be clearly shewn tha property is really neutral or friendly, its being covered under hostile habiliments for the pur THE pose of evasion, will not necessarily subject it to condemFRANCES, nation. But the evidence must be less equivocal than (DUNHAM that relied on in this case. The property was already & RAN- captured and libelled as liable to American capture, DOLPH's when the Claimants' letter of the 19th September was CLAIM,) written. To receive such evidence, under such circumBOYER, stances, to so critical a point, would be to surrender MASTER. every belligerent right to fraud and imposition. The letter of the 22d of August must, therefore, be taken on its plain import, and such effect given to it as its words imply, This letter contains an express exclusion of the goods under consideration; but it is contended that, as Thompson's letter left them no latitude, but obliged them either to choose or refuse the whole, their acceptance of part cast on them the property in the whole. But we are of opinion that such was not the effect of this act of the Claimants. The consequence of such a doctrine would be that where a property is to be acquired upon a condition performed, the condition may be rejected, and yet the property acquired. It certainly put it in the power of the shippers either to cast the whole property upon the Claimants, or resume the property, and make the consignee accountable for that which had come to his hands. Falconer, Jackson & Co. upon the arrival of the Frances, had she not been captured, would have had an undoubted right to demand the shipment made by her, on the ground of the Claimants' not having accepted it within the time limited; and it would have been in vain for the Claimants to have contested their right, whilst they held the letter of the 22d of August, and Thompson's instructions on the subject of the acceptance. If, then, it rested with Thompson or his agent to retain the property in this shipment, or cast it upon the Claimants, the consequence is, that the legal interest still remained in the shippers. This conclusion on the state of interest in the parties, renders it unnecessary to consider the argument urged to except this case from the rule relative to changes ef property in transitu: and we hope it will be, at all times, recollected that the reasoning in this case is not founded on the implied admission of the distinction taken by the Claimants' counsel on this subject, |