3d. That whether the treaty of peace of 1783, declaring that no future confiscations should be made, protects from forfeiture, under the municipal laws rèspecting alienage, lands held by British subjects at the time of its ratification, or not, yet that the 9th article of the treaty of 1794 completely protected the title of a British devisee, whose estate had not been previously devested by an inquest of office, or some equivalent proceeding.

(PRIZE.)

The FRIENDSCHAFT-Winn, et al. Claimants.

Informal and imperfect proceedings in the district court corrected and explained in the circuit court.

A bill of lading, consigning the goods to a neutral, but unaccompanied by an invoice or letter of advice, is not sufficient evidence to entitle the claimant to restitution; but is sufficient to lay a foundation for the introduction of farther proof.

The fact of invoices and letters of advice not being found on board, may induce a suspicion that papers have been spoliated. But even if it were proved that an enemy master, carrying a cargo chiefly hostile, had thrown papers over board, a neutral claimant, to whom no fraud is imputable, ought not thereby to be precluded from far. ther proof.

The native character does not revert, by a mere return to his native country, of a merchant, who is domiciled in a neutral country at the time of capture; who afterwards leaves his commercial establishment in the neutral country to be conducted by his clerks in his absence; who visits his native country merely on mercantile business, and intends to return to his adopted country. Under these circumstances, the neutral domicil still continues.

British subjects resident in Portugal, (though entitled to great privileges,) do not retain their native character, but acquire that of the country where they reside and carry on their trade.

APPEAL from the circuit court for the district of North Carolina.

The brig Friendschaft was captured on a voyage from London to Lisbon, by the privateer Herald, and brought into Cape Fear, in North Carolina, where the vessel and cargo were libelled, in July, 1814, as prize of war. The commercial agent of his royal highness the Prince Regent of Portugal, interposed a claim to several packages, parts of the said cargo, on behalf of the respective owners, whom he averred to be Portuguese subjects and merchants residing in Portugal. The cargo consisted of many different shipments. Most of them were accompanied with bills of lading, directing a delivery to shipper or order. Of these a few were specially indorsed. Generally, however, they were without endorsements, or with blank endorsements only. A few shipments were accompanied with bills of lading, deliverable to persons in Lisbon, specially named in the bills. Very few were accompanied with letters or invoices. These, it was alleged in the claim, had probably been sent by the regular packet.

In August, 1814, the district court pronounced its

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The Friend

schaft.

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The Friendschaft.

sentence, condemning as prize of war, "all that part of the cargo for which no claim had been put in," and "all that part of the cargo which was shipped, as evidenced by bills of lading, either without endorsement or with blank endorsements, and not accompanied by letter or invoice, viz.

and that part appearing by the bill of lading to consist of forty bales of goods shipped by Moreira, Vieira, and Machado. Farther proof was ordered with respect to the residue of the cargo and the vessel.

From this sentence the claimants appealed to the circuit court. That court, in May, 1815, dismissed so much of the appeal as respected the brig, and that part of the cargo in respect to which farther proof was ordered, as having been improvidently allowed before a final sentence, and affirmed the residue of the decrce, except in regard to the forty bales shipped by Moreira, Vieira, and Machado, with respect to which farther proof was directed, to establish the right of Francis Jose Moreira to restitution of onethird part thereof.

In April, 1816, farther proof was exhibited to the district court, in support of the claim for the parts of the cargo comprehended in the bills of lading numbered 108, 109, 141, 122, and 118, which bills being deliverable to merchants residing in Lisbon, whose names were expressed therein, were not endorsed. The farther proof was deemed sufficient, and restitution was ordered. The vessel and the residue of the cargo were condemned as prize of war.

From so much of this sentence as awarded resti-.

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The Friend

tution, the captors appealed; and in May, 1816, the circuit court decreed as follows: "This court being of opinion that the former sentence of the district schaft. court, affirmed by the sentence of this court, rendered in May term, in the year 1815, having been left imperfect by omitting to recite the particular claims intended to be involved in the condemnation pronounced in the district court in terms of general description; and being also of opinion that the words 'all that part of the cargo which was shipped as evidenced, by bills of lading, either without endorsement, or with blank endorsements, and not accompanied with letter or invoice,' could be intended for those bills only which were to shipper or order, and not to those addressed to consignees named in the bill itself, is of opinion that there is no error in the sentence of the district court, and doth affirm the same."

From this decree the captors appealed to this court. On the interposition of this appeal, the circuit court ordered that Joseph Winn, a British born subject, resident in Portugal, in whose behalf a claim was filed to No. 118, should be permitted to offer farther proof to the supreme court, to be admitted or rejected by that court.

Mr. Wheaton, for the appellants and captors. 1. The decrees of the district court of August, 1814, and of the circuit court of May, 1815, were final and conclusive, and ought to have precluded the district court from subsequently allowing farther proof as to these five claims. The terms of general description, VOL. III.

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which are used by the judge of the district court, are equivalent to a particular designation of the claims intended to be condemned. "All that part of the cargo which was shipped as evidenced by bills of lading, either without endorsement, or with blank endorsements, and not accompanied with letter or invoice"is as effectually condemned by the sentence, as if the particular portions of the cargo thus documented had been specifically enumerated. The portions now claimed were shipped as evidenced by bills of lading, either without endorsement, or with blank endorsements, and not accompanied with letter or invoice. Consequently, they were included in the condemnation by the district court, which became final and conclusive upon the parties, by the decree of the circuit court rendered at May term, 1815, affirming that of the district court, and from which no appeal was entered. The subsequent proceedings, by which the district court admitted the claimants to farther proof, were, therefore, coram non judice, and utterly null and void. These branches of the cause were completely extinct, and could not be revived in any court. 2. And can this court have the least doubt of the justice and legality of this decree of the district court, as thus understood and explained? Is it possible that it is come to this, that in a court of prize, a mere bill of lading to A. B. or assigns, unsupported by any other documentary evidence found on board, or by the oath of the master, shall be regarded as sufficient, even to entitle the party to farther proof? If goods shipped in the enemy's country can pass