shall be credited, and there be sureties for part of the U. STATES debt, as was the case here, it seems reasonable to some of the judges to let them have the benefit of it, by apply- GILES ing the credit in such a way as to exonerate them, so far & OTHERS. as the sun paid shall be sufficient for that purpose. If regard be had to the order of time in which the monies were received by Giles, it will be seen that the sum of 3,763 dollars and 98 cents, which is the first sum for which he is in arrear, was received by him prior to the 9th of January, 1801; and the next sum for which he is accountable, to wit: the sum of 1,683 dollars and 52 cents, came into his hands after that day, but previous to the 27th of March, 1801, and after this, other monies were received by him. These two sums together are not equal to the payment which was made to Livingston.

Following this order, the sum for which the Defendants are liable being among the first that were received, and being recoverable with interest on their bond, would on this principle be extinguished by the first payment if it were sufficient, as was the case here, to discharge all the monies which had been received prior to the receipt of the sum for which the Defendants are answerable, and that also. But this is not the opinion of a majority of the judges. They think, and such is the decision of the Court, that the United States have yet a right to apply these payments in a way most beneficial to themselves and so as not to extinguish the sum of 1,683 dollars and 52 cents, for which the Defendants are accountable.

The Court then is of opinion that judgment must be given for the Defendants as to the sum of 20,613 dollars and 12 cents, being the first sum assessed as conditional damages upon the second breach.

Judgment must in like manner be given for the Defendants as to all the other sums assessed as conditional damages upon the second breach.

It is next to be decided whether the conditional damages of 5,255 dollars and 73 cents, assessed on the fourth breach be recoverable against the Defendants.

These damages are given in consequence of a suppos-
VOL. IX.

31

J

v.

GILES

U. STATES ed conversion by Giles of the fourteen bonds mentioned in the special verdict. But it being found that these bonds were delivered to Edward Livingston, by and &OTHERS. with the assent and approbation of the comptroller of the treasury, the Court is unanimously of opinion, for reasons already assigned, that such delivery was no conversion of these bonds by Giles, and that therefore judgment must be rendered for the Defendants, as to the said sum of 5,255 dollars and 73 cents, being the damages assessed as aforesaid on the fourth breach.

The last question which is submitted to us regards the sum of 309 dollars and 87 cents, which it appears by the finding under the fifth breach assigned, was received by Giles on the first of September, 1800, on an execution at the suit of the United States, against Richard Capes, which was retained by Giles towards satisfaction of an equal sum due to him. This sum being received prior to the execution of the bond, must be regarded within the reasons assigned for not considering the, Defendants liable for the two sums of 50 dollars and of 3.713 dollars and 98 cents, herein before mentioned, and judgment must, accordingly, in the opinion of a majority of the Court be given for the Defendants, as to the said sum of 309 dollars and 87 cents, being the damages assessed upon the fifth breach.

It will be seen that the Court is of opinion that the Defendants are liable under their bond for the sum of 1.683 dollars and 52 cents, which was received by the marshal after its execution, and before he went out of office; but by not one of the findings on the different breaches assigned, does it appear to have been contemplated that this sum alone might be recoverable in this action, and accordingly no conditional damages are assessed to suit that state of the case.

The Court therefore can only give its directions as to the questions submitted to them, which are,

That it must be certified to the Circuit Court for the district of New York in the second circuit,

1. That judgment must be given for the Defendants as to the sum 3,763 dollars and 98 cents, being the damages assessed upon the first breach of the condition of U. STATES the bond assigned in the replication of the Plaintiffs.

v.

GILES

2. That judgment must be given for the Defen- & OTHERS, dants as to the several sums of 20,613 dollars and 12 cents, of 14,374 dollars and 77 cents, of 9,895 dollars aud 09 cents, of 10,718 dollars and 03 cents, of 16,133 dollars and 44 cents, of 6,238 dollars and 35 cents, and of 4,479 dollars and 68 cents, being the several sums assessed, as conditional damages on the second breach.

3. That judgment must be given for the Defendants, for the sum of 5,255 dollars and 73 cents, being the damages assessed upon the fourth breach, and

4. That judgment must be given for the Defendants for the sum of 309 dollars and 87 cents, being the damages assessed upon the fifth breach,

THIS was a case certified from the Circuit Court Fat cattle are for the district of Vermont, the opinions of the judges of provisions, or which Court were opposed.

munitions of war, within the meaning of the of the

of

Barber was indicted, " for that he being a citizen act of congress, of the United States, and inhabiting the same, with force July, 1812, to and arms, at," &c. " did attempt to transport over land prohibit Amethirty head of fat cattle which were then and there arti- from proceedcles of provision and munitions of war, and were all of ing to or tradthe value of 300 dollars, from a place in the United ing with the States, to wit: from Berkshire, in the said district of United States, Vermont, to a place in the province of Lower Canada, and for other to wit: to St. Armons, in the province aforesaid, contrary to the form, force and effect of the statute of the United States, in such case made and provided," &c. There was another count in which he was charged with the actual transportation of them. After a verdict against him, he obtained a rule to shew cause why judgment

V. STATES should not be arrested, because fat cattle were neither provisions nor munitions of war within the meaning of JOB L. the act of congress, entitled " an act to prohibit AmeriBARBER. can vessels from proceeding to or trading with the enemies of the United States, and for other purposes" or any other act of congress.

By the second section of the act referred to, which was approved on the 6th of July, 1812, vol. 11, p. 300, it is - enacted, " that if any citizen of the United States, or person inhabiting the same, shall transport or attempt to transport, over land, or otherwise," " naval or military stores, arms or the munitions of war, or any article of provision, from any place of the United States, to any place in Upper or Lower Canada, Nova Scotia or New Brunswick," " the person or persons aiding or privy to the same shall" "be considered as guilty of a misdemeanor, and be liable to be fined in a sum not exceeding five hundred dollars, and imprisoned for a term not exceeding six months, in the discretion of the Court."

March 7th. Absent....TODD, J.

This Court ordered it to be certified to the Circuit Court, that it is the opinion of this Court that fat cattle are provisions, or munitions of war, within the true intent and meaning of the act, entitled "an act to prohibit "American vessels from proceeding to or trading with "the enemies of the United States, and for other pur" poses."

THIS was an appeal from the sentence of the Cir

American pro-cuit Court for the district of New York.

perty re-cap

tured may be

restored on

payment of

The American letter of marque, schooner ADELINE,

saivage, al- sailed from Bourdeaux for the United States with acarthough the li- go, owned in part by citizens of the United States, and

THE

in part by French subjects. On the 14th of March, 1814, she was captured, in the bay of Biscay, by a Bri- SCHOONER tish squadron, who put a prize crew on board and or- ADELINE. dered her for Gibraltar. After being six days in the

demnation of

possession of the British she was re-captured, near Gi- bel prays conbralter, by the American privateer Expedition, who put it as prize of a crew on board and ordered her for the United States war, and does

not claim sal

where she arrived and was libelled, with her cargo, by vage., Salvage the re-captors, in the district Court at New York, as prize is an incident of war. The vessel was claimed by citizens of the Uni- to the question ted States residing therein, as was also part of her cargo. A test affida

of prize.

vit ought to

so the time

Another part of the cargo was claimed by French state that the property at the subjects resident in the United States. Another part time of shipby French subjects, resident in France. Another part ment, and alby citizens of the United States, resident in France. of capture, did Another part, by French subjects whose residence was belong, and will, if restornot stated, and another part by citizens of the United ed, belong to States, whose residence was not stated, and another the Claimant, but an irregupart by " alien friends" without stating of what nation, larity in this or where resident. Some of the claims stated the pro- respect is not perty, at the time of capture to belong to the persons latest affidatherein mentioned, and did not state to whom it belonged vitby an agent, at the time of shipment.

fatal.

is not sufficient, if the principal be within

and within a

The district Court condemned, as good prize, all the the country, property owned by Frenchmen and other persons resi reasonable disdent in France, and all the property of those persons tance from the whose residence was not stated; and restored all the Court. But if test affidavits, property belonging to persons resident in the United liable to such States, upon payment of one sixth for salvage. The objections, vessel was restored, by consent of parties, on payment quiesced in by of one half for salvage. The sentence was affirmed pro the parties in forma, by consent, in the Circuit Court.

have been ac

the Courts below, the objections will not

Court.

The re-captors appealed as to the rate of salvage, prevail in this which they contended ought to have been one half, those Claimants, whose property was condemned, appealed.

The case was submitted to the Court by J. WARD, and EMMET, for the re-captors, and by and D. B. OGDEN, for the Claimants, upon their notes for argument.

and By the act of also the 3d of March, 1800, one sixth part only is allowWooD-ed to a priva

teer for sal

IRVING, vage upon the written re-capture of the cargo on