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Upon the argument no specific objection was taken to the restitution of any of the property claimed, excepting that included in the claim of Messrs. Ivens & Burnett. This shipment was made by Messrs. Burnett & Co. of London, to Messrs. Ivens & Burnett of St. Michaels, and the invoices declare the goods to be by order, and for account and risk, of the latter gentlemen. It is contended, in behalf of the captors, that both houses are composed of the same persons, viz. William S. Burnett, who is domiciled at London, and William Ivens, who is domiciled at St. Michaels; and that the documentary evidence, and private correspondence, show that the shipment was made on account of the hostile house. If the fact of the identity of the two houses were material to a decision of the cause, it might furnish a proper ground for an order for farther proof. But admitting the fact to be as the captors contend, we are satisfied that it can be of no avail to them. It is clear, from the whole documentary evidence, that this shipment was not made on the account and risk of the hostile house, but bona fide on the account and risk of the neutral house. It does not, therefore, present a case for the application of the principle, that the property of a house of trade in the enemy's country is condemnable as prize, notwithstanding the neutral domicil of one of its partners. On the contrary, it presents a case for the application of the ordinary principle which subjects to confiscation, jure belli, the share of a partner in a neutral house, where his own domicil is in a hostile country. And, on this view, the decision of the circuit court is entirely correct, and is consistent with the doctrines established in the cases cited at the argument.

The next inquiry is, as to the freight decreed to the master. As no appeal was interposed to the decree of the district court, allowing the whole freight for the whole voyage, the question, whether more than a pro rata freight was due, (a question which would otherwise have deserved grave consideration,) does not properly arise. The only discussion which can now be entertained, is, whether the freight so decreed ought not to have been charged upon the whole cargo, instead of being charged upon a portion of it. And we are all of opinion that it was properly a charge upon the whole cargo. Although capture be deemed, in the prize courts, in many cases, equivalent to delivery, yet the captors cannot be liable for more than the freight of the goods actually received by them. The capture of a neutral ship, having enemy's property on board, is a strictly justifiable exercise of the rights of war. It is no wrong done to the neutral, even though the voyage be thereby defeated. The captors are not, therefore, answerable in poenam to the neutral for the losses which he may sustain by a lawful exercise of belligerant rights. It is the misfortune of the neutral, and not the fault of the belligerant. By the capture, the captors are substituted in lieu of the original owners, and they take the property cum onere. They are, therefore, responsible for the freight which then attached upon the property, of which the sentence of condemnation ascertains them to be the rightful owners succeeding to the former proprietors. So far the rule seems perfectly equitable; but to press it farther, and charge them with the freight of goods which they have never received, or with the burden of a charter party into which they have never entered, would be unreasonable in itself, and inconsistent with the admitted principles of prize law. It might, in a case of justifiable capture, by the condemnation of a single bale of goods, lead the captors to their ruin with the stipulated freight of a whole cargo.

On the whole, we are all of opinion, that the decree of the circuit court ought to be affirmed, except so far as it charges the freight upon the property condemned, and the moiety claimed by Messrs. Ivens & Burnett; and as to this, it ought to be reversed, and that the freight should be decreed to be a charge upon the whole cargo, to be paid by each parcel thereof, in proportion to its value.

Decree affirmed, except as to the freight.i

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