Where goods were shipped in the enemy's country, in pursuance of orders from this country received before the declaration of war, but previous to the execution of the orders, the shippers became embarrassed, and assigned the goods to certain bankers to secure advances made by them, with a request to the consignees to remit the amount to them (the bankers), and they also repeated the same request, the invoice being for account and risk of the consignees, but stating the goods to be then the property of the bankers, it was held that the goods having been purchased and shipped in pursuance of orders from the consignees, the property was originally vested in them, and was not devested by the intermediate assignment, which was merely intended to transfer the right to the debt due from the consignees. 27*] *Am's brought forward, APPEAL from the Circuit Court for the Dis- Warence against fre est on £1,041 0 11- 6 15 0 15 00 52 10 79 0 0 £1282 4 6" trict of New York. The goods in question were part of the cargo of the ship Mary and Susan, a merchant vessel of the United States, which was captured on the 3d of September, 1812, by the Tickler, a private armed vessel of the United States. The cargo was libeled as prize of war; this portion claimed by Messrs. G. & H. Van Wagenen, and condemned in the stating that the goods were shipped by Thomas 2. A bill of lading in the usual form, District Court. In the Circuit Court this sen- and William Earle & Co., of Liverpool, to be tence was reversed, and restitution to the claim-delivered to the claimants, or to their assigns, ants was ordered; from which decree the cap in New York. 3. The two following letters: tors appealed to this court. The cause having been heard in both the courts below, on the documentary evidence found on board, the original order for the goods does not appear. That they were shipped in consequence of 26*] orders is, however, sufficiently proved by the letters addressed to the claimants, and the other papers which accompanied them. These are: 1. An invoice headed in the words following: "Birmingham, 8th July, 1812. Say 15th March, 1811. "Invoice of fourteen casks and four baskets of hardware, bought by Daniel Cross & Co. by order, and for account and risk, of G. & H. Van Wagenen, merchants, New York, marked and numbered as per margin, and forwarded on 4th March, 1811, to care of Martin, Hope & Thornley, Liverpool, and by them afterwards transferred to the care of T. and W. Earle & Co., Liverpool; which goods are now the property of Messrs. Spooner, Atwood & Co., bankers. of Birmingham, to whom you will please to remit the amount of this invoice." "Birmingham, 8th July, 1812. "Messrs. G. & H. Van Wagenen: "Gentlemen-In consequence of the revocation of the British orders in council, on the first day of August next, we have lost no time in shipping the goods sent to Liverpool so long since, agreeable to your kind order. They are in the Mary and Susan, a most beautiful new vessel, to sail in all this week; the freights are very high, 70s. for measurement to New York, and 80s. to Philadelphia, and at this moment notming less will be taken. We, therefore, thought you would prefer to have the goods at this rate, rather than wait for a reduction in the freight, which, we doubt not, will soon take place. By the letter of our friends, Messrs. Spooner, Atwood & Co., herewith, you will perceive the interruption to commerce has been an inconvenience to us as young merchants; but the unneighborly conduct of the old house will only serve to prompt us to new exertion for our friends in the States, for whose interest nothing shall be omitted within our power. We shall certainly serve them as well, if not on better terms, than heretofore. We will not be undersold. In a few days we shall send Mr. Oakley, for the use £1041 0 11 1-2 of our friends, a new and complete set of patterns, which, we trust, will meet with their approbation. Mr. O. and Messrs. B. W. Rogers & have been papers. They are not produced. The affidavits of the shippers of Mr. Grant, of the consignees in England, are not produced. What must be the conclusion from this general silence? It must be, that if produced, they would not support the asserted defense. At least, such is the judg ment that both the common law and the admiralty law pronounces in cases of suppression of evidence." And containing at the foot, after the enumeration of the articles and their prices in the usual form, the following charges: "Amount of Invoice, "Commission 5 per cent. 52 1 0 1-2 £1093 2 0 pers, or of Mr. P. Grant? Can it be credible that, without any authority, the master, or part owner of the ship should, on their own responsibility, have gone to Liverpool without orders or consignment? That from a mere vague knowledge of the wishes of the shippers, they should place at imminent risk the whole property, without written authority to color their proceedings? There must Co. will be able to give you more particulars re- | plation of law, a delivery to the claimants. But specting what has passed on this side. The Attwood & Co. were the shippers, between amount of invoice herewith to your debt is £820 2 1, which, agreeable to the letter of Messrs. Spooner, Attwood & Co., you will please to remit to them on arrival of the goods; 28*] *but hereafter things will move in the usual channel. Waiting for further favors. We remain, gentlemen, Your most obedient servants, "Daniel Cross & Co." "Birmingham, 9th July, 1812. "Messrs. G. & H. Van Wagenen, Merchants, New York: whom and the claimants there was no privity. There is no proof that Cross & Co. ever accepted the order or commission sent to them by the claimants. There was a sale and delivery of the goods from Cross & Co. to Attwood & Co., and the order was executed by strangers to the claimants. Could any action have been maintained by the claimants against Attwood & Co. ? None could have been maintained, even against Cross & Co. Possibly, if they had agreed to accept the commission, special action on the case might have been brought against them as factors. But by the a "Gentlemen-In consequence of the late un-assignment to the bankers they disabled themfortunate state of affairs between this country selves from executing the order. The bankers and the United States of America, great incon- did not acquire the mere lien; they would not venience and distress have naturally been ex- have been secure without the absolute dominion perienced by the merchants and manufacturers of property. They were not obliged to ship, here. Among others, our friends Messrs. nor the claimants to receive. Both parties Daniel Cross & Co. have been considerably em- might, or not, according to their interest. barrassed, and have received great relief and Suppose the goods had been lost in their transit, assistance from our house. We were induced could Attwood & Co. have maintained an acto extend this assistance, as bankers, from tion for the price against the consignees? I motives of friendship and regard, and under anticipate the unanimous answer of the court the hope that the unnatural state of affairs be- in the negative. Suppose the goods should be tween the two countries could not possibly last condemned as prize of war, could the bankers long, but as it was necessary that our assist- recover against the claimants? No! neither in ance should be very considerable, we thought it consequence of a physical nor a legal loss. right to obtain from them an assignment of The case of Dunham and Randolph' is concertain quantities of goods which they had pro- clusive of the present. Attwood & Co. [*30 vided on account of your house, and of several exercised acts of ownership on the goods after others in the United States, previous to the 2d the transfer to them, and until the lading on of February, 1811. We are thus introduced to board. The claimants could not have received your acquaintance, and we beg leave to send the goods without paying Attwood & Co. you herewith an invoice of the goods which They may have had an interest in paying Cross Messrs. Daniel Cross & Co. had purchased for & Co., their correspondents, who may have your account, and which are now forwarded to had their funds in possession-who may have you, requesting that you will remit the amount, been their debtors. They had an election pre£820 2 2, to us at your earliest convenience. cisely as the claimants in the Frances had. We cannot conclude this letter without expressing our satisfaction at the services we have had the opportunity of rendering to Messrs. Daniel Cross & Co., whom we consider to be persons of the greatest integrity and knowledge of business, and without earnestly recommend ing them to your future attention. We are convinced that their late difficulties will not at all affect their future proceedings, and that they will henceforth be enabled to carry on their business in the same regular and punctual way as they have formerly done; and we cannot but flatter ourselves, that as the orders in council are now revoked, and the British government has become alive to the true interest of the British people, the natural relations between the two countries will long continue, and that the connection between your respectable house and Messrs. Daniel Cross & Co. will be productive of permanent and mutual advantages. With best wishes for your prosperity and happiness, and that of your country, "We are, respectfully, gentlemen, "Your obedient humble servants, "Spooner, Attwood & Co., "Bankers, Birmingham. "Messrs. G. & H. Van Wagenen, Merchants, New York." Dexter, for the respondents and claimants. The possession of the goods was continued in Cross & Co. by their agents at Liverpool, Earle & Co., who shipped as their, and, consequently, as our agents, on board a general ship, to us, for our account and risk. When the goods were first put in motion, their transit to New York began, and they were, in effect, delivered to the consignees at that port. Some act of the correspondent in Europe may be necessary to show that he elects to consider the goods, after being purchased of the manufacturer, as the property of the merchant in America. But such an act existed in this case; and the property changed when the goods were delivered to the common carrier on the canal from Birmingham to Liverpool, i. e. in 1811. The carrier was the bailee of the consignees in law, and the goods were at their risk from that time. It may be true that the bankers cannot maintain a suit against us; but it may be true that the property, nevertheless, vests in us. The only doubt whether such a suit could be maintained, is, that the debt due to Cross & Co. being chose in action, could not be transferred. Still, the right to it subsists in them, *who [*31 may sue the claimants on account of the ad vances made by order from them. It is, therefore, immaterial which of the two parties in England may maintain the action. Except for 29*] *Hoffman, for the appellants and cap- 1. Case of the Frances, Feb. Term, 1814 and The the intervention of the capture and prize pro- | erty of Cross & Co. The delivery in the vehicle ceedings, the goods are delivered, and the claim- on the canal was inland, and preparatory to the ants are debtors for the price. A bill of lading maritime delivery. The agents of Cross & Co. drawn in consequence of an order to ship goods, at the outport were not agents of the claimtransfers the property to the consignee. There ants, nor liable to them in an action. is no copy of what is termed the assignment; claimants were not bound, nor could they take but it is easy to see that its object was not to possession at this epoch. Suppose Cross & Co. defeat the arrangement, or the subsisting rela- had become bankrupt, would the goods have tions of creditor and debtor between Cross & Co. | vested in them? or would they have been and the claimants; but merely to enable the obliged to ship? 3. Consider the legal effect bankers to receive their money from the con- and circumstances of the assignment. Cross & signees. Either the assignment was a sale or a Co. were the complete proprietors of the goods, mere naked authority to receive payment from and the present claimants could not have shown the claimants. If a sale, then was it invalid for themselves in a court of justice. The parties want of delivery; if an authority only, then the considered the transfer to have changed the right of property remains where it was, though property, and they knew better what they had it is possible the bankers would have been en-done than the court can know. It must, theretitled, in equity, to receive the money. The fore, have been calculated and adapted to expression in the heading of the invoice, change the property; the bankers could have "which goods are now the property of Messrs. had no indemnity otherwise. They must have Spooner, Attwood & Co.," only proves them to had a discretion to dispose of the goods; and be bad lawyers and bad logicians. Probably had they become bankrupts, their assignees they are ignorant of the distinction between must have had the same discretion. There is general and special property. The res gestæ do always a locus penitentiæ in the vendor before not warrant a pretension of general property in delivery (as to the right of property I mean, them, and we deny the conclusion they have not as to the right of action in the vendee); drawn. Nothing passed but a right to receive the caprice of the vendor may influence him to the price of the goods. They had not even a change the direction of the property. Had the lien, or other legal right, because they never right of the claimants been a vested right, the had the possession; and, in whatever way they vendor in England might have brought [*34 might have enforced their claim, they meant an action against them at any stage of the 32*] nothing more by it than a *confident ex- transaction. At what epoch could either he or pectation, founded on mercantile courtesy, that the bankers have brought such an action? The the claimants would pay them. The original remaining question is as to the concurrent acts arrangement was to subsist, and Cross & Co. of both. Did those acts vest a right to the were, in fact, the shippers. Even supposing price in either? or was it in the election of the they have not fulfilled our order literally and claimants to receive the commodities? The instrictly suppose a right of election in the con- tervening assignment to the bankers sundered signees to receive or reject the goods-are we the merchants in England from the claimants; not to wait for this election? Can they lose the it deprived them of their ability to obey the property before this election is made? An ir-original order; all privity of contract between regularity or defect in the execution of their the principal and agent was gone. There was order may give them a right of action against no obligation on the part of Attwood & Co. to their correspondents in a court of municipal law for damages; but if the rule of the prize court be, that the property must be vested in the claimants at the time of shipment, they are entitled to restitution in the present case. ship, no authority, no power, no right. How is it that the rights of war on the property are to be defeated? By showing an authority to ship? It exists not. The question is stricti juris; the claimants are not bound Pinkney, for the appellants and captors, in to acquiesce in the new state of this transa.creply. The question is, in whom did the prop- tion; they have an election to do so or not. erty vest at the time of shipment, or at the Had the goods arrived without interruption at time of capture? The claimants could not make their port of destination, the claimants might an efficacious election after capture, because the have accepted them, and thus adopted the new rights of the captors interposed before any elec- state of the transaction, and the new parties to tion could be made. If these rights had not it. But the rights of war intercept transfer. thus interposed, then the power of election The consignees are not liable for the retrospecmight be exerted. Therefore, the question tive charges at the foot of the invoice, unless stated is the only controversy in the cause. the goods had been shipped by the agent, and Take the transaction by its stages; break it up received by the principal. The usage of trade into its constituent parts, at what epoch-is, that the factor always charges these exthrough the instrumentality of what circum-penses; were it otherwise, it would follow that stances did the property pass to the claim the property would always be transferred on ants? If it did not so pass, it was, on the the first purchase, contrary to the express auocean, the property of an enemy, and, therefore, thority of The Frances, with which the present liable to capture and confiscation. The orders case coincides in principle. are not here; but will the documentary evi33*] dence, now before the court, justify restitution? 1. Did, then, the first purchase vest the property in the claimants? In The Frances, it was determined that it had no such effect; and the doctrine is upheld by all principle and all analogy. 2. The goods were sent to Liverpool, and they still remained the prop *Marshall, Ch. J., delivered the opin- [*35 ion of the court, and, after reciting the documentary evidence, proceeded as follows: Upon these papers it is contended by the captors, that the goods remained the property of Daniel Cross & Co. until the transfer to Spooner, Attwood & Co., when they became the prop erty of the assignees; that this change of prop. | trinsic evidence of ownership, other than the erty so operates upon the subsequent shipment as to make it a shipment without order, and to leave it in the election of G. & H. Van Wagenen to accept or reject the goods; and that this right of election is terminated by the intervening right of the captors. fact as would scarcely have taken place without special orders, in the course of which an actual investment of the property in the person by whose order, and for whose use, the goods were purchased and stored at a seaport, is not unreasonably to be expected. The court considers this letter, then, as proving incontestably that the goods were conveyed to Liverpool, and there stored, to be shipped on the happen mere possession; but in the state of trade which existed at the time of this transaction, such change, and the evidence of it, may be reason ably expected. In the common state of things, the whole order respecting purchase and shipment, where the same agent is employed, is On the part of the claimants it is contended, executed with expedition, and is, in appearthat their right commenced with the purchase, ance, one transaction. In the actual state of which was made by their order, and for their things, the purchase was to be made immediaccount and risk, and was completed when the ately, but the shipment was to take place at goods were forwarded to Liverpool; that if this some future indefinite period. It would depend point be determined against them, still the on an event which might be very near or very whole transaction evidences an intention to as-remote. It became a divided transaction, or, sign the claim of Daniel Cross & Co. to Spooner, rather, two distinct operations. We look for Attwood & Co., so as to give them a right to re- some intervening evidence of ownership in the ceive the money, but not in any manner to af- person for whom the purchase was made, and fect the interests of G. & H. Van Wagenen. are not surprised at finding it. If, in such a Whether Messrs. G. & H. Van Wagenen be- state of things, the goods were procured under came the owners of the goods on their being a general order to purchase, but not to ship unsent from Birmingham to Liverpool, must de- til some future uncertain event should occur, pend on the orders under which Daniel Cross and were, in the meantime, to remain the & Co. acted. If their authority was general to property, and at the risk of the agent, they ship to G. & H. Van Wagenen, the goods might, would probably be retained at the place of puraccording to the circumstances of the purchase, chase under his immediate control and inspecremain the property of Daniel Cross & Co. un- tion. Their conveyance to a seaport, there to til they were delivered to the master of the ves-be stored until their importation *into the [*38 36*] sel for the purpose of transportation. *If United States should be allowed, was such a they were directed to purchase the goods, and to store them in Liverpool as the goods of G. & H. Van Wagenen, to be afterwards shipped to the United States, it appears to the court that the property changed on being sent to Liverpool, and immediately vested in the American merchants for whom they were purchased. The testimony respecting the orders is found in the letter from Daniel Cross & Co. to G. & H. Van Wagenen. The words of that letter which bearing of some future event which it was supposed particularly on this point are: "In consequence would restore the commercial intercourse beof the revocation of the British orders in coun- tween the two countries, in pursuance of specific cil, on the first day of August next, we have orders from the claimants; and is further of lost no time in shipping the goods sent to Liver- opinion that the transaction itself furnishes pool so long since, agreeably to your kind strong intrinsic evidence that the goods, when order." This language is not equivocal. It stored in Liverpool, were the goods of the imports, in terms not to be misunderstood, that claimants, subject to that control over them the goods were sent from Birmingham to Liver-which Daniel Cross & Co. would have as the pool, in consequence of the orders of Messrs. purchasers, and intended shippers, who had adG. & H. Van Wagenen. This letter is addressed vanced the money with which they were purto the house which had given the order, and chased. However this control and lien might was written without an existing motive for mis- be used for their own security, it could not be representing that order. There is certainly wantonly used to the destruction of the propnothing in the circumstances of the transaction erty of G. & H. Van Wagenen, and any conwhich would render it probable that the order veyance to a person having notice of their rights must be represented in this letter, either care- ought to operate, and be considered as intended lessly or intentionally, in any manner different to operate, consistently with them, so far as the. from that which was really given. The situa- two rights could consist with each other. The tion of this country during what has been words, then, in the invoice, which represent termed our restrictive system was notoriously the goods as the property of Spooner, Attwood such as to render it an object with every im- & Co., are introduced with no other object than porting merchant to use the utmost dispatch in to secure the payment of the purchase money bringing in his goods so soon as they should be to them. The invoice made out by Spooner, legally admissible. Nothing, therefore, can be Attwood & Co. themselves, states the merchanmore probable than that orders for making dise it specifies to have *been purchased [*39 37*] purchases *which were to be executed at by Daniel Cross & Co., by order, and on account an inland place, by a house residing at such and risk of Messrs. G. & H. Van Wagenen, place, would be accompanied with orders direct- and to have been forwarded to Liverpool more ing them to be conveyed to a seaport, there to than 12 months anterior to the date of the shipbe held in perfect readiness for exportation. In ment. Goods thus purchased, and thus conthe usual course of trade, if the purchasing and veyed to a seaport, and stored under the orders shipping merchant be the same, there would of the American merchant, may well be conrarely be any actual change of property be- sidered as leaving in the purchasing agent only tween the purchase and the shipment of the the lien which a factor has to secure the payarticles, nor could we expect to find any ex-'ment of the money which is due to him. If this was the true state of the property at the | on arrival of the goods." This is the letter of time of the assignment to Spooner, Attwood & an agent who has executed, completely, the Co., they having full notice that the assignment order which had been given him; but who, havcould only operate as an order for G. & H. Van Wagenen to pay the money to them (Spooner, Attwood & Co.), and would, probably, in its form and expressions, manifest this idea. The court is much inclined to the opinion that these goods became the property of the claimants on being stored in Liverpool, if not at an antecedent time. The question, however, would, undoubtedly, be affected by the order under which Daniel Cross & Co. acted, by the deed of assignment to Spooner, Attwood & Co., and by other papers which are attainable. If, therefore, the case depended entirely upon this point, further proof might be required. But, in the opinion of the majority of the court, the case does not depend on this point alone. ing been compelled to borrow money, had transferred his pecuniary claims to his creditor. The letter of Spooner, Attwood & Co. will next be considered. It is dated the day after that written by Daniel Cross & Co. After stating their friendship for Daniel Cross & Co., and the aid afforded that house, they add: "But as it was necessary that our assistance should be very considerable, we thought it right to obtain from them an assignment of certain quantities of goods which they had provided on account of your house, and of several others in the United States, previous to the 2d of February, 1811. We are thus introduced to your acquaintance, and we beg leave to send you herewith an invoice of the goods Daniel Cross & If the goods were shipped in pursuance of the Co. had purchased for your account, and which orders given by G. & H. Van Wagenen, the de- we now forward to you, requesting that you livery on board the ship was a delivery to them; will remit the amount of £820 2 1 to us at the property was vested in them by that act, your earliest convenience." *Nothing is [*42 and they had no election to accept or reject it. said in this letter respecting the vessel by which 40*] In pursuing this inquiry, the legal the goods were sent; nothing indicating the exeffect of the transaction must depend, in a con-ercise of any judgment by Spooner, Attwood siderable degree, on the intent of the parties, & Co., respecting the time or manner of sendand that intent is, in this case, to be collected ing them; nor anything which would lead to chiefly from their letters, and from the cir- the opinion that they interfered, in any mancumstances in which they stood. G. & H. Van ner whatever, in the transaction of the business. Wagenen were American merchants desirous On comparing the two letters, the inference is of receiving the goods they had ordered as soon inevitable, that Daniel Cross & Co. continued as the importation of those goods should be al- to execute the order of G. & H. Van Wagenen, lowed. Daniel Cross & Co. were commission mer- in like manner as if their affairs had never been chants of Birmingham, engaged in the Amer- embarrassed. The contents of the two letters, ican business. Spooner, Attwood & Co. were in conformity with the situation and views of bankers, friendly to Daniel Cross & Co.; were the parties, prove that Daniel Cross & Co. had desirous of promoting their interests, and rec-only transferred to Spooner, Attwood & Co. ommending them to business, and had ad- their right to receive payment for the goods, vanced them money while embarrassed by the and that the arrangements between them were difficulties consequent on the state of trade be- intended only to secure that object. The assigntween the United States and Great Britain. ment of the goods mentioned in the letter of Spooner, Attwood & Co. were desirous, not of Spooner, Attwood & Co. does not appear from purchasing the goods stored at Liverpool by the context, and from the nature of the transCross & Co. for the claimants; not of interrupt-action, to be intended to convey the idea of a ing the shipment of those goods, or the con- sale, but to be used in rather a different sense, nection between Daniel Cross & Co. and G. & as an assignment of the adventure, or of the H. Van Wagenen, but of permitting the ship-right to the debt due from G. & H. Van Wagment to proceed, and of receiving, themselves, enen. Whatever may have been the form of the money to which Cross & Co. were entitled. this assignment, it is apparent that it could not Such was the situation, and such the objects of have been made, and certainly was not made, all the parties. Keeping this situation and these with the intention of enabling Spooner, Attwood objects in view, let the testimony be examined. & Co. to defeat the shipment to G. & H. Van The letter of Daniel Cross & Co., dated the 8th Wagenen, or to control the proceedings of Danof July, 1812, is in the language of men who iel Cross & Co., under the order they had rewere themselves the shippers of the goods. ceived. Why, then, are the goods, when put "We have lost no time," they say, "in ship- on board the Mary and Susan, in pursuance of ping the goods, sent to Liverpool so long since, the orders of the claimants, to be con- [*43 agreeably to your kind order." They speak of sidered not their property, but as the property 41] the vessel and of the freight as if the of Spooner, Attwood & Co.? It is said that vessel were selected, and the contract made, by they were shipped by Spooner, Attwood & Co., themselves. "We thought you would prefer not by Daniel Cross & Co.; that the confidence to have the goods at this rate rather than wait implied in the order for purchase and shipment for a reduction in the freight." They next was personal, and could not be transferred or refer to the letter of their friends, Spooner, executed by another. Allow to this argument all Attwood & Co., to show the inconvenience the weight which is claimed for it by the counthey had sustained as young merchants, but sel for the captors; what part of this personal without any indication of an interference of trust was transferred? What part of the order that house in the shipment, and conclude was executed by any other than Daniel Cross with saying, "the amount of invoice, here- & Co.? The goods were purchased, sent to with, to your debit, is £820 2 1; which, Liverpool, stored, and, afterwards, shipped by agreeably to the letter of Spooner, Attwood them. Every other auxiliary part of the trans& Co., you will please to remit to them action was performed by them. Nothing ap |