The Zulema. 1 Acton. ous paper. There may be many other reasons for using such papers beside purposes of fraud. The manner, also, of bringing in these papers from the ships Columbian Packet and Titus, is highly objectionable, no opportunity whatever being given to the appellants to explain them, as they probably could to the satisfaction of your lordships by other documents. One part of the property remains, however, unimpeached, Mann's property in the ship's * cargo, [ * 16 ] and freight. To permit the cargo in this instance to affect the ship, would be to carry the doctrine of prize farther than it has hitherto been attempted. While the points of evidence contained in the invoked papers are, at best, equivocal and uncertain, the original evidence, documents, and affidavits are clear and decisive as to the property of both ship and cargo. If even the identity of the writer of the letter alluded to were proved to be that contended for, there is in that letter no absolute averment of the property. This is merely founded on the strained inferences attempted to be imposed on the court in deficiency of conclusive evidence. There seems to be nothing even in the correspondence between the parties which can lead your lordships to discredit the proof of property; and so cautious have the owners been, that they have desired the appellant, who is their captain, to abandon a claim which had been made for goods, but which since they have ascertained not to be their property, though entered as such in the bills of lading. These goods, it appears, were not put on board by their own shipper, Foussat; nor was the master apprised whose property they were until the vessel had almost completed her lading, and, consequently, could not, without great inconvenience, reland them. The whole appears a fair and open transaction. The proof of property unimpeached, and the owners, therefore, entitled to restitution. JUDGMENT. SIR WILLIAM GRANT. The papers which have been exhibited in the court below, seem to produce nearly the same impression as those which have since been invoked into this cause. It appears from many parts of both these papers that there was a joint [ 17 ] concern in the proceeds of this cargo between the Foussats. The three hundred and eighty-five baskets of oil, mentioned in the letter from the Bordeaux merchants, appear clearly to be shipped on their own account, and impeaches the whole proof of property on the part of Fonssat. Nor can it escape our notice that this sort of agency seeems to have been habitual, and has no other object but that of injuring and evading the belligerent rights of this country. We therefore condemn Mr. Foussat's part of the cargo, as well as his half of the The Titus. 1 Acton. ship, though by no means as a consequence of condemning his part of the cargo, but from a deficiency of proof in the evidence of property, on which there is not that clearness which we could wish. As he appears the detected agent for covering enemy's property under false appearances, we cannot admit him to the benefit of exhibiting further proof. The cargo being perfectly an innocent cargo, the title of Mr. Mann remains unimpeached, and we therefore order that his half of the ship, as well as his proportion of the cargo and freight, be restored.1 [* 18] *THE TITUS, Cushing, master. June 10, 1809. Sentence of condemnation reversed in consequence of the shipper in the enemy's country fairly accounting to the neutral owner for the whole freight and earnings of the vessel. The claimants for part of the cargo admitted to exhibit further proof, although the ship is discovered to have mysterious papers on board. THIS was a case of appeal from a sentence of condemnation by the Vice-Admiralty Court of Bermuda, on the ship and part of the cargo, as the property of the enemy, though claimed for several American merchants. The King's Advocate and Adams, for the captors. In this case, abounding with inconsistencies, the first that presents itself is, that this claim is made by Messrs. Bainbridge & Co., though the owner of the ship, Mr. Dumas, of Philadelphia, has, in a letter of instructions to his master, directed him in case of seizure by British cruisers, to have recourse to his friends, Messrs. Mullet & Co., residing in London, for advice and assistance. The whole transaction. appears so replete with deception and fraud, that it will be found almost impossible to lay hold of any thing in one shape, which, on a more strict investigation, will not appear to assume a different form and complexion. We find the vessel described as altogether the pro 1 The property claimed by several other citizens of the United States was also restored; as it appeared by the papers exhibited, that they were shipped for their account and risk, and were such articles as were calculated to be disposed of by retail, in the respective shops of the claimants, who reside in Philadelphia. The Titus. 1 Acton. perty of American merchants, by the attestations of the master and shippers, corroborated by the evidence of the seamen, and confirmed by the papers on board, her pass, bills of lading, and register. This representation is totally overturned and falsified by an investigation of the papers and correspondence, which were evidently not intended for publication. The whole claim is not a little affected by the circumstance of Mr. Foussat (whose ship, The Zumela, was, within the present month, condemned by your lordships on account of gross prevarication and fraud) *having thought it his duty [* 19 ] to abandon a claim in this cargo for wine and plate, which claim was also prosecuted by the house of Bainbridge & Co. until within these few days. This has, perhaps, been effected by the solicitation of Dumas himself, who cannot but be apprised of the danger in which his claim stood, from appearing joined in a claim with a man whose character and connection with the enemy have been so manifestly developed. It will not be difficult to prove this vessel is similarly circumstanced with The Zulema just mentioned, and thence will appear to your lordships a property justly subject to condemnation with the costs of appeal. The principle of law, laid down so explicitly in the case alluded to, must embrace the present case; inasmuch as this vessel's papers, and the representations of her owner, attempt to cover the enemy's property, and defraud the belligerent rights of this country. Upon this principle, also, it will not be possible to admit the owner who thus fraudulently misrepresents the cargo, to the benefit of further proof, as to the ship or any part of the cargo. The general species of trade carried on between the ports of Philadelphia and Bordeaux, has been amply elucidated by the case cited, as well as many others not perhaps less in point. Most of the Bordeaux merchants, it appears, have agents in the United States, who have a convenient latitude of conscience sufficient to enable them to cover their employer's property, as that of neutrals. And were it not that persons conscious of fraud in themselves cannot sufficiently confide in each other, and, therefore, defeat their designs, by permitting the deception to become apparent in their private correspondence, wherein they cannot refrain from expressing their anxiety for the safety of this covered *property, and from making repeated [* 20 ] demands for credit on account, or quick returns for these falsely denominated cargoes, it would perhaps be impossible, such is the calamitous extent of this system of false swearing, that the rights. of the belligerent should ever be enforced in cases of this description. It must be admitted, wherever there is reason to suspect a precon-certed system of fraud, there is the less necessity to exhibit positive and direct proof; notwithstanding which, the fraud will be most dis The Titus. 1 Acton. tinctly substantiated in the present case, by the papers which were found in her possession at the time of the capture. This vessel is consigned to Justin Foussat, of Bordeaux, whose dexterity in this sort of trade has been already proved. He affects to be the mere agent for the neutral merchant, and while shipping goods for the joint account of himself, Foussat and Dumas, of Philadelphia, describes them carefully on oath the sole property of neutral merchants. This appears most conspicuously in Foussat, of America, having withdrawn the claim made for part of his cargo, a few days since. Mr. Dumas considers his case not so desperate, and, therefore, has appealed. The vessel, he contends, is solely and exclusively his property. To prove this, he produces the ship's papers. But in the correspondence between Foussat, of Bordeaux, and his brother, he describes the whole of the shipment, which he consigns him, as his property; specifies, like an owner, the sort of sales he should be pleased with; and inculcates the necessity of making him quick returns. This letter alone would have completely overturned the claim of Foussat, of Philadelphia, had it not been prudently withdrawn. It is signed by Louis, and addressed to Charles Le Roy, but from a comparison with that addressed [* 21 ] by Foussat, to his brother, * and the exact correspondence of circumstances, minute descriptions, and numbers, there can be no doubt entertained that it was intended for Foussat, of Philadelphia, and written by his brother. In the latter part of this letter, the writer requests that a part of the passage money, which he remits by a draft on Foussat himself, may be carried to his credit. Passage money is, however, the earnings of the vessel, and, therefore, can belong only to the owner. In this instance, therefore, it appears that Foussat, of Bordeaux, avows himself a part proprietor. Upon comparing the sum for which he claims credit by the drafts of passengers in the ship, with the passage money, it will be found nearly two thirds of the whole. The zeal, anxiety, and pains which he takes to procure freight, passengers, and the manner in which he reduces the freight in favor of his brother's goods, shipped on board this vessel, prove him more than a mere agent. In fact, great part of the vessel is freighted with goods, for which Dumas appears never to have given any order, and in one letter, which is without signature, but appears also to come from Foussat, and is addressed to Mr. Hector, he advises him of having shipped for his account six tons of wine, which, in another part of this most fallacious correspondence, is said to be for account of Mr. Orthes. This Orthes is supposed to be the brother of Dumas, who had some time before left France on account of his embarrassment, and is perhaps described by this fictitious name in his sister's letter, lest this consignment, in case of capture, should be condemned as the property of a French citizen. These six tons of The Titus. 1 Acton. wine are, notwithstanding, found also entered for the sole account and risk of Dumas, in the ship's bill of lading. The representation, therefore, of the cargo of, the vessel * appears appears [22] totally false, and can be only intended to conceal from the belligerent the nature of the trade in which the vessel has been engaged. The arrangement which Foussat makes in favor of his brother's part of the cargo, is such as might be expected, and he justifies it by stating that he had procured an equal abatement on a late shipment to the same person, adding also that it was principally as an inducement to other shippers, to freight the vessel, that he had put these goods on board at a higher nominal freight than usual. The property of the enemy, in several instances, is attempted to be protected, by describing it on oath, as that of neutrals, and the property of the vessel itself must appear subject to condemnation, from the circumstance of Foussat's claiming a credit for a considerable share in the earnings of the vessel, which can solely accrue to him as part owner. Arnold and Stephens, for the appellants - As the counsel for the captors have rested the strength of their case on assimilating it to that of The Zulema, and have utterly failed in this expectation, the case of the appellants is thereby rendered the more simple and unembarrassed. With respect to the property of the ship, the proofs are full and complete. She is described by her pass, register, and evidence of the captain, as American property. Dumas built the ship, and continues to exercise the authority of an owner, with respect to the vessel, even after leaving his port, and throughout the whole voyage. The proportion of the ship's earnings, whether passage money or freight, which it is contended was placed to the credit of Foussat, at Bordeaux, is minutely accounted for to Dumas by the drafts of passengers on board, all made payable to himself, and which *Foussat merely claims a credit for, as the agent of Dumas, [* 23 ] transmitting by this mean part of the proceeds of his vessel. Of these passengers, some had funds in America, and others had property on board, for which reasons they preferred giving drafts on American merchants for either freight or passage, and some even found it convenient to raise money of Foussat on similar drafts. The property of the vessel remains unimpeached. By the attestation of the master, the documentary and parol evidence adduced, the cargo also is proved generally the property of neutrals. Mr. Foussat, of America, having withdrawn his claim, is a striking feature of integrity in this case, and shows how unwilling the appellants were to have their appeal contaminated by any color of fraud, which it is pro |