#### THE FRANCES, Boyer, Master, *(Dunham and Randolph’s claim.)*

*Absent....Todo, J.*

IN this case further proof was ordered at the. last term.

*(See Ante vol. S,p.*334.;

If a BritisU own funds, *tv**cargoes of .goods m consequence of, but not in exact, ^Xlordm of an Ameiv America,'Re¡ng th« Ameriean house an option witKin *M*hours after, or reject both “[¡^!~gnd0 [¡c0 v'itídn tU liTMp that they, consider as to p,,etsn^„; power of the British mRrS'thewhoie upontheAme*184mean house, or p%peerty'aíd make them'ac-that'^wWch'7 «ame to their rfhf of Traperty cargo not aenoCinuansitu, vest in the ’ Amcricanbouse, but remains in the Brit-sh subject and is liable to condemnation, ha beiug.au enemy,

*183Pinkney, *for the Claimants.*

The property vested in Dunk am. and Randolph by the shipment. It was made in consequence' r»P, although not strictly in conformity with, their orders; and delivery .to the master of the vessel was tantamount to a delivery to themselves. The invoices and bills of lading ail stated the goods to be shipped on *their account and risk,*

But if the property did not pass by the *shipment,*there, is no reason why it should not pass *in transitu,*so that it be before capture. It is true that it cannot vest *in transitu*so as to defeat a vested belligerent right. But if the transfer take place, according to the original terms of the .contract, before a belligent right has .accrued, it is.not within the principle nor the spirit of rule. If the further proof shows that the property had absolutely vested in Dunham and Randolph before the capture, it must be restored. ;

. The further proof shows that the invoice, stating thé shipment to be made fop. their, account and risk, was *184sent to them; and that D. and R. wrote a letter beiork tiie capture of the Frances accepting tiie go ids by the *Fanny,*and saying that they would *consider*as to those by the Frances.

The question then is, whether the whole of both cargoes did not thereby vest, *eo iiistanü,*in Dunham and Randolph.

The documentary evidence is clear and positive; ii *)cil0ves the captors to show how it is qualified.

Tiie condition upon which the property was to vest in the Claimants, was performed before the capture. They a-i?r'ee'T to take the goods by the *Fanny,*and were inbound to take *both*shipments. Tir-y could,not afterwards refuse *that*by the Frances. Their letter agree>nS to take the goods by the Fanny was dated the 22d of August The Frances was not captured until the 28th.

T vtMETT, Oil *the Same silk.'*

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

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

Dexter, *contra. ■*

This Court has decided that this was a condition *precedent,*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 Ra'ndolbli, either in fact or in law, the property could pass *in transitu.*The general principle is, that it could riot. 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 iimited to the time of shipment. For the *185same reason, prize Courts have rejected equitable liens. If it were not so, further proof would be required in every case. 6 *Eob. 329*— note," *Tiven Vernier Monk,*This rule is reasonable. "Possession is evidence of owncrship. Change óf title *in transitu*is only an exception to the general rule. The exception should be confined to the cases in w hich it has been held necessary, as where possession could not be delivered, &c. The pa-pees on board are always sufficient for the captors. In a prize Court the documentary evidence is ¿11 important. This point is settled in the'cade of the claim of Jones and M‘Gee in the *Venus*at this term.

. 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 imnr terial 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 thp 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 j 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 he condemned they could not receive them.

It is not credible that they should have received them absolutely at the time they were under seizure. Th«*y did not *bonajide*accept them.1 It is not to be believed that they would take qpon 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. Thempson made a new’ proposal to them. They did not accept it, but offered new terms on tlieif part to which/Thompson did not assent; so that there was no agreement. The property never passed.

*186Emmett, *in reply.*

There' are two questions in this cause:

1. The first is a question of facti did Dunham and Randolph accept the goods ?

2. The second is a question of law, can such an ac-change the title *in- transitu.*

4. 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 h id agreed to execute the order, and was hound so to do. In shipping the? goods he was executing an order, not making a bargain. Dun-ham 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 shiopir. They were purchased-by the agent of Dunham and Randolph by their order and for theii 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. ThbRipson-eithei* had or had not a right to annex the condition. If he had not, then the goods were the property of Dunham and Randolph *al) initio.*If he had a right to annex the condition, they *187had no right to reject it. They were bound to take all or none — if they took part they were; bound to take 1 the residue. Their reservation of a right to consider aste the goods by the Frances, Was void. The only remain-. ing question is whether belligerent property can change *in transitu.*

Belligerent rights, in derogation of the common law, are to be construed strictly. They are not to be ex-ténded further than the state of war requires. 5 *Rob.*161, *Vrow Ama Cathañna.*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 th^n 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 w'ar; 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. It 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:

This claim is interposed to obtain restitution of three bales and nineteen boxes of goods captured in the Frances. As 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, 1'hompson ships the articles ordered; and, originally intending to ship to *188the Claimants, a consignment on his own account, intermingles, with the goods ordered, a variety of others not contained in the order of the Claimants. These goods are shipped Ity two vessels, the Fanny and the Frances ; and, by a letter dated the 11th of July, 1812, Thompson advises the Claimants ofthese shipments ; and, after descanting on the merits of the articles, and declaring Ills reason for blending other'goods with those shipped to their,order, and his subsequent determination to make them an offer of the additional goods, lie continues in these words; «1 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 « handthe'iuvoices and letters over to Messrs. Falconer, « Jackson and Co. 1 think twenty-four hours will alr « low you ample opportunity for you to make up y >ur « jnindson 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 s-e, I think the reason- « ableness of ypur taking the whole, or none, of the «shipment.” '

The Fanny readied the waters of the United States in *safety;*and, being seized by a revenu" 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,* hut 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» *189But it is evident that this delivery may be absolute or qualified, and that the effect of,it ipust Vary accordinging.y. A voluntary agent has the option either to enter upon his agency in strict conformity with the instructions of his principal, or with sue!» reservations or conditions as he may think proper to prescribe; and the only consequence is, that, in the latter case, he leaves his principal at liberty to adopt or repudiate his acts, The shipper who purchases g >ods on his own credit or with his own funds, is not acting in the ordinary capacity 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 consequénce was, that the delivery was not absolute, but qualified ; and, until the condition performed, the goods remained the property of the shipper j 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 ñ ora 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 22(1, the capture of the Frances on the 28th of August. It is contended that the acceptance of the Fanny’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 effect of the acceptance; but the reservation was intehded only as a ruse. *de guerre*to guard against' the effects of hostile capture.

There is certainly nothing illegal in resorting to devices 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*190pose of evasion, will not necessarily subject it to condcmnation. But the evidence, must be less equivocal than that relied on in this case.. The' property was already captured and libelled- as liable to American rapture, when the Claimants* letter of the.119th September was written. To receive such evidence, under such circumstances, to so critical a point; would be to surrender every belligerent right to fraud and'impositk>n. The lej.ter the' 22d of August must, therefore, betaken 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; out" it is contended that,, as Thompson’s letter left them no latitude, but obliged them either to ehooséor refuse the whole, their acceptance of Sari cast on them the property in the whole.

But we are of opinion that such was not the effect of this aqj 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, arid 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 Ids hands. Falconer, Jackson & Co. upon the arrival of the Frances, had she not been captured,' would have had an undoubted right to demand t[|e shipment made by her, on the ground of the Claimants’ not having accepted.it within the time limited; apd 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, dr cast it upon the Claimants, the consequence is; thatr 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 rale relative to changes of property *in*transitu:/ and we hope it will be, at ail times, recollected that the reasoning ire this case is not fóuYided' on the implied admission of the- distinction taken by the Claimahts’ coimsipl on this subject.