1816. Hepburn & of Colin Auld, the attorney in fact of John Dunlop & Co., or of such other person or persons as the said circuit court may appoint, in case the said Colin Auld should decline to serve, or the said circuit court Dunlop & should see good cause to make such other appoint ment. And it is farther ordered and decreed, that the defendants, William Hepburn and the executors and executrix of John Dundas, deceased, do make up, state, and settle, before a commissioner, or commissioners, to be appointed by the said circuit court, an account of the rents and profits of the said 6,000 acres of land since the 27th day of March, 1809, and that they pay over the same to the complainants, John Dunlop & Co., or to their lawful agent or attorney. And this cause is remanded to the said circuit court for such proceedings to be had therein, for carrying into execution the decree of this court in the premises. e Mr. J. LIVINGSTON and Mr. J. STORY, did not sit in this cause. V. Co. The St. Joze Indiano.-LIZAUR, Claimant. Goods were shipped by D. B. & Co. of Liverpool, on board a neutral ship bound to Rio de Janeiro, which was captured and brought into the United States for adjudication. The invoice was headed, "consigned to Messrs. D. B. & F., by order and for account of J. L." In a letter accompanying the invoice from the shippers to the consignees, they say, "For Mr. J. L. we open an account in our books here, and debit him, &c. We cannot yet ascertain the proceeds of his hides, &c., but find his order for goods will far exceed the amount of these shipments; therefore we consign the whole to you, that you may come to a proper understanding with him." It was held that the goods were, during their transit, the property, and at the risk of the enemy shippers, and, therefore, subject to condemnation. APPEAL from the circuit court for the district of Massachusetts. The ship St. Joze Indiano, bound from Liverpool to Rio de Janeiro, was captured and sent into the United States, as prize of war, in the summer of 1814. The ship and most of the cargo were condemned as British property in the circuit court, and there was no appeal by any of the claimants except in behalf of Mr. J. Lizaur, of Rio de Janeiro. The right of Mr. J. Lizaur, to have restitution of property belonging to him, at the time of capture, was not contested by the captors; but it was contended, that the property in question, when captured, was at the risk of the shippers, Messrs. Dyson, Brothers & Co. of Liverpool. The bill of 1816. The diano. lading did not specify any order, or account and risk. The invoice was headed, "consigned to Messrs. Dyson, Brothers & Finnie, by order, and for account St. Joze Inof J. Lizaur." In a letter accompanying the bill of lading and invoice, of the 4th of May, 1814, from Dyson, Brothers & Co. to Dyson, Brothers & Finnie, they say, "For Mr. Lizaur, we open an account in our books here, and debit him, &c. We cannot yet ascertain the proceeds of his hides, &c., but find his order for goods will far exceed the amount of these shipments, therefore we consign the whole to you, that you may come to a proper understanding with him." The house of Dyson, Brothers & Co., of Liverpool, and of Dyson, Brothers & Finnie, of Rio, consist of the same persons; goods claimed in behalf of the latter house were condemned on the ground that both firms represented the same parties in interest, and from this decision there was no appeal. Harper, for the appellant and claimant. This case may be contrasted with those said to be similar. In the case of Kimmel and Alvers," on the authority of which this portion of the cargo was condemned in the court below, the claimants had ordered the goods shipped, but there was no evidence that they had paid for any part of the goods, or that they were charged to them by the shippers. In that case the breaking out of the war produced a change in the destination of the goods, and a complete control over them was retained by the vendor, which con 1816. The trol was exercised by his directing his agent not to deliver them without payment in cash, in case war St. Joze In- should have been declared before their arrival. The diano. doctrine in the case of the Messrs. Wilkins, fully bears out the present claim. In that case, the mere right of stoppage in transitu, was held to be vested by the shipper in his agent, to be exercised only in the event of insolvency. But in the case now before the court, the power of Dyson & Co. was limited to an arrangement for the payment of a certain part of the price only which remained unpaid. In the case of the Messrs. Wilkins no part was paid in advance, and the goods were not charged to the claimants, another circumstance which distinguishes it from the present. The case of Magee and Jones, and that of Dunham and Randolph," was a mere offer to sell, not a sale agreed to by the vendee, like that in the present case. Dexter, for the respondents and captors. The case is clearly within the principles adjudged. Thus, it has been determined, incidentally, at the present term, in the case of Van Wagenan,' that property is not immediately vested in the correspondent by a purchase by his agent, by order, whether it be with the money of the former or latter. The case of Messrs. Wilkins was not a unanimous decision of the court, but is clearly distinguishable from the pre b The Merrimack. February term, 1814. e The Mary and Susan. Vide supra, p. 46. 1816. The diano. sent. Here there was no change of possession from the shippers: the goods were in their possession during the voyage, by their agent, the master; had St. Joze Inthe goods arrived, they would still have been in their possession, by their agents, the consignees. If the goods remained the property of the shippers at the time of shipment, and during the voyage, then they became the property of the captors, jure belli. They remained the property of the shippers, because they were consigned to their agents, to be delivered, contingently, to the claimant. goods are confiscable as prize of war. Therefore the The cases of Magee and Jones, and of Dunham and Randolph, are in point. STORY, J., delivered the opinion of the court, and, March 9th. after stating the facts, proceeded as follows: The single question presented on these facts is, in whom the property was vested at the time of its transit; if in Mr. Lizaur, then it is to be restored; if in the shippers, then it is to be condemned. It is contended, in behalf of the claimant, that the goods having been purchased by the order, and partly with the funds, of Mr. Lizaur, the property vested in him immediately by the purchase, an being executed by the sale, no delivery to perfect the legal title: that nothing w the shippers but a mere right of stopp and that if they had been burnt befor or lost during the voyage, the loss. on Mr. Lizaur. |