APPEAL from a decree of the District Court for the Southern District of New York, condemning as enemy's property the bark Sally Magee and her cargo, captured during the late rebellion; the question before this court being, however, only as to the cargo; the condemnation of the vessel not being appealed from. The case was thus: Before the commencement of the rebellion, the vessel had been engaged in trade between Richmond and South America. Her outward voyages were usually to Rio Janeiro. She left Richmond upon her last voyage on the 2d of January, 1861–that is to say, about three months before the outbreak of our civil war*fn1 –with a cargo of flour and domestic goods, shipped by Edmund Davenport & Co., of Richmond, and consigned to Charles Coleman & Co., at Rio. She took in a return cargo of coffee and a small parcel of tapioca. Four bills of lading were given. Three of them were to Coleman & Co.; two for consignments to Davenport & Co.; the third for a consignment to Dunlap & Co. The other bill of lading was to Moore & Co., of Rio, and was for a consignment also to Dunlap & Co. All the goods were to be delivered at Richmond. The vessel sailed from Rio for Richmond on the 12th of May, 1861. When forty-five days out from Rio, and before any intelligence of the war had reached her, she was captured as prize, and sent to New York, where both the vessel and cargo were libelled in the District Court. Upon the return of the monition, on the 23d of July, 1861, two claims, both made by Fry, Price & Co., of New York, were interposed relative to the cargo. In July, 1863–two years after the proceedings on prize were instituted–both the vessel and cargo were condemned, the latter having been appraised at the considerable sum of $69,000. One of the claims made by Fry, Price & Co., was in behalf of Coleman & Co., and embraced that part of the cargo (1500 bags of coffee) which was consigned to Davenport & Co. It stated among other things that Coleman & Co., as factors and commission merchants, at Rio Janeiro, 'had been directed to purchase and ship for the account, and to the consignment of Davenport & Co., coffee, if procurable, at not over ten and a half cents a pound; that Coleman & Co. did make the shipment of the cargo above claimed to the consignment of Davenport & Co., but that by the invoice thereof it appeared that the said purchase was not made at or within the said limit; for which cause, Davenport & Co. had refused to receive it as purchased for their account, or otherwise than on the account of the shippers, Coleman & Co., and as agents of necessity for them; and that the said Davenport & Co. had authorized Fry, Price & Co. to receive the same in their place and behalf as aforesaid.' The claim was supported by the affidavit of Mr. Price of this firm. It alleged 'that the facts above stated' were stated 'from the correspondence of the parties, which he believes to be true.' None of the papers referred to were put in evidence by annexing them to the affidavit or otherwise. The other claim related to the residue of the cargo–about 2000 bags of coffee–consigned to Dunlap & Co., of Richmond. It was not denied that this was enemy's property. The claimants alleged, however, a lien. Their claim stated that Dunlap & Co. owed them a balance of $35,326, and upwards, and 'that they were authorized and directed by that firm to receive and sell the coffee, and apply the proceeds, as far as necessary, to the payment of the debt, and to hold the balance for the account of the debtor firm.' Like the first claim, this one was supported by the affidavit of Mr. Price, who swore that he stated the above facts 'from correspondence with the firm of Dunlap & Co., and copies of the invoices of the cargo, and believed the same to be true.' But as in the case of the preceding claim, neither correspondence nor copies were produced. It is necessary here to say that, by act of Congress of March 3, 1863,*fn2 'to protect the liens upon vessels in certain cases, and for other purposes,' it is provided, that where any vessel or other property shall be condemned in proceedings authorized by certain preceding acts (against rebels), the court making the decree of condemnation shall, after condemnation and before awarding the distribution of the proceeds of confiscated property, provide for the payment out of the proceeds, of any bona fide claims by any loyal citizens intervening in the prize proceedings, which shall be duly established by evidence.
The opinion of the court was delivered by: In The Frances,*fn5 one of them, a British agent in Great Britain, in orders given before the war to purchase goods for the claimants, an American house in New York, made purchases, but deviated from the orders. He said: 'I have exceeded in some articles, and have sent you others not ordered. I leave it with yourselves to take the whole of the two shipments, or none at all, as you please.' The bill of lading and invoice were expressed to be on account of the American consignees. Marshall, C. J., speaking of the consignment in excess of orders, says:
Mr. Lord, for the claimants: The vessel having been captured before any intelligence of our civil war begun had reached her, the question of intent to break the blockade of our Southern coast so usual a question of late in the court–does not arise.
The question, as to the claim set up for Coleman & Co., is one of enemy's property purely; and as to the other, a question of the protection, under the statute of March 3, 1863, of a lien held by loyal citizens of New York. In both cases we suppose that the onus probandi is with the captors.*fn3
I. As respects the claim in behalf of Coleman & Co.
The question is one simply, as we have said, of the enemy status of the claimant; a proprietary question, whether at the time of capture the cargo was the property of neutral or of enemy? Now,
1. A foreign correspondent making a shipment on the order of his principal, but without the limits of the order, does not vest the property in the principal without some act of adoption, or waiver by him. Here there was none.
The doctrine has been uniform in the prize courts, that although goods are ordered by a correspondent, yet if they are subject to rejection by the principal, the property does not pass unless accepted. Several cases to this effect–the Merrimack and others–may be seen in 8th Cranch.*fn4
'This, then, is a new proposition, on which the American correspondents are at liberty to exercise their discretion. They may accept or reject it, and until they do accept it, the property must remain in the enemy shipper.'
So here it remained in the Brazilian shipper until the deviation from orders should have been accepted or waived.
2. The claim and test affidavit were sufficient. The claimants at Rio could not be expected to verify the claim personally; the verification by an agent is all that can be asked. The Richmond consignees, from living in Virginia, could not be expected to make the verification. The devolution of the rejected purchase to a competent agent, is in all respects proper, and the only way the claim could be put in.
The test affidavit with the claim is sufficient. The office of the test affidavit is not to supply the details of evidence, but to aver the simple fact of proprietary interest. The oath annexed is as efficient as any detail of circumstances or correspondence. An order for further proof is made by the court ex motu suo only. It was not competent to the claimant to apply for it. The affidavit is always the summary proof, and, until impeached by further proof, is decisive in prize proceedings.
There is no ground to doubt the truth of the affidavit, by reason of any want of statement in the bills of lading or papers, that the property is neutral. At the time of the last communication to Rio from the United States there was no war, blockade, or contraband, which the ship's papers could refer to. Nor could the correspondence between the parties embrace any letters from the consignees respecting this shipment. There is no ground of any suspicion of suppression or unfairness as to documents; and on the claim, not impeached, and on the ship's papers, the coffee of Coleman & Co. should not have been condemned, but restored to the claimants.
The decree of condemnation precluded all claim to offer further proof. Until the decree, no further proof could be admitted, even if the matters alleged were material, or were capable of an ...