The St. Joze Indiano
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 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 of 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 condemmed 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 ease may be contrasted with those said to be similar. In the case of Kimmel and Alvers,a 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 control
a The Merrimack. February term, 1814. was exercised by his directing his agent not to deliver them without payment in cash, in case war should have been declared before their arrival. The doctrine in the case of the Messrs. Wilkins,b 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,c and that of Dunham and Randolph,d was a mere offer to sell, not a sale agreed to by the vendee, like that in the present case.
b The Merrimack. February term, 1814.
c The Venus. February term, 1814.
d The Frances. February term, 1815.
e The Mary and Susan. Vide supra, p. 46. 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 the 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. Therefore the goods are confiscable as prize of war. The cases of Magee and Jones, and of Dunham and Randolph, are in point.
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,e 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 present.
STORY, J., delivered the opinion of the court, and, after stating the facts, proceeded as follows: