The Friend the seas under so thin a veil as this, the defects of 1818. which may afterwards be supplied by fabricated proofs, what security is there for belligerent rights? schaft. To what cause are we to attribute a transaction so unusual and irregular in commerce, but to the desire of the British shippers and owners to retain in their own hands the double power of stopping the goods in transitu, and of enabling the consignees to claim them in the prize court in case of capture? If this practice be tolerated by the court, the enemy shipper need resort to no complicated machinery of fraud in order to cover his property. He need do no more than put on board a bill of lading, unaccompanied by any invoice of the goods, or letter of advice showing in whom the property vests. In case of capture, nothing more will be necessary than to enter a claim in the name of the neutral consignee, and to demand an order for farther proof, and under that order to ransack the great officina fraudis to find the instruments of forgery and perjury; the aid of which will not become necessary, in case the shipment, thus made, escapes the vigilance and activity of the belligerent cruisers. Should they thus escape, the goods will be sold on account of the enemy shipper, and the proceeds of the sale will be remitted to him again by the same process; and thus the whole of the enemy's trade may be effectually screened from the perils of war. A bill of lading is an instrument too easily fabricated, to permit a court of prize to consider it alone as furnishing any proof, (even presumptive,) of property in the consignee. Whether the goods had been previously ordered by the Portu 1818. The Friendschaft. guese consignee, or sent by the British shipper for sale on his own account, they would equally have been accompanied by the same document, which is equivalent to no evidence whatever of proprietary interest found on board. Unless some such evidence be found on board, or a foundation be laid by the preparatory examinations of the captured crew, to let the claimants into farther proof, the necessary simplicity of the prize proceedings forbids a resort to extraneous testimony; and, as that originally before the court is insufficient to entitle the party to restitution, condemnation must ensue. Not only are the bills of lading unaccompanied by invoices and letters of advice, but they do not express the shipment to be "for account and risk" of the consignees; and the freight is payable in London, and, (of course,) by the consignors. These circumstances distinguish this case from all those cases in which it has been determined, (under the municipal law,) that a bill of lading, expressing the shipment to be for account and risk of the consignee or his assigns, vests the property in him, subject only to the right of stoppage in transitu; and the same circumstances liken it to those where the obligation on the part of the consignor to pay the freight was held to authorize him to bring an action against the carrier master for the goods, notwithstanding the form of the bill of lading." It is wholly incredible, that the letters and invoices which ought to have accompanied these shipments, were sent by the Lisbon packet, (as suggested,) since a Davisetal v. James, 5 Burr. 2680. Moore v. Wilson, 1 T. R 659. though duplicates of such papers may be sent, and frequently are sent, by conveyances, other than that of the ship in which the goods are transported, yet it is unusual and mercantilely irregular not to send the originals with the goods. The invoices are, by the revenue laws of most, if not all countries, indispensably necessary to enter the goods at the custom-house, avoiding the inconvenience of unpacking and valuing them. These papers are required by the law of nations, and the prize code of every country, to accompany the bill of lading, in order to fortify and confirm it. The absence of them does not, indeed, in all cases, furnish a substantive ground of condemnation, and exclude the party from farther proof. But in order to avoid this consequence, there must be some favourable presumption raised by the circumstances of the case, and the nature of the documentary evidence found on board. This presumption cannot exist in the case of a shipment in the enemy's country, of goods, the growth or manufacture of that country, under a bill of lading, unsupported by the oath of the master, and unaccompanied by any invoice, letter of advice, or other document whatever. The privilege of farther proof is imparted under the sound discretion of the court, where a foundation is laid for it, by the papers found on board, and the depositions of the captured persons. Neither the documentary evidence, nor the examinations in preparatorio, afford any foundation for it in the present case; since they do not furnish any, the slightest reason for believing, that it belongs as claimed. The court would be 1818. The Friendschaft. 1818. opening a wide door for fraud, were it to extend the The Friend- privilege of farther proof to such a case, which is schaft. neither one of honest ignorance or mistake. It is impossible that the parties should have been ignorant of what both the usage of trade, and the practice of prize courts, require. It is impossible that they should have omitted by mistake, what could not have been omitted but by design. The ancient French prize law, and the prize regulations of many other countries, do absolutely exclude farther proof, and condemn, or restore, upon the original evidence only. If by the more mitigated practice which this court has adopted, farther proof be sometimes allowed, it is not as of strict right, but of equitable indulgence, where the circumstances of the case lay a foundation for it, and the claimants do not forfeit the privilege by their own misconduct. 3. No additional farther proof ought to be admitted in this court, under the special orders of the circuit court, in the claim of Mr. Winn, giving him liberty to produce still farther proof (in addition to the farther proof exhibited to the district court) in this court, to be admitted, or rejected, at the discretion of the court. It is a settled principle of practice, that farther proof cannot be introduced in this court, unless, under the circumstances of the case, it ought to have been ordered in the court below. Such is the limitation to the admission of farther proof in the appellate tribunal, which has been established by the lords of appeal in England and adopted by this court. If, as has been contended, farther proof ought not to have been admitted in the district court, the consequence follows, that it ought not to be admitted here. But the lapse of time alone ought to preclude the claimants from this indulgence. They were fully apprized of the nature of the proof which their case required; they had it in their power to produce it; and after two years have elapsed, the necessity of suppressing the frauds which might be consequent upon such excess of indulgence, demands that the court should reject the additional farther proof now offered by them." Mr. Winn's claim ought to be rejected, because, supposing his proprietary interest to be made out ever so clearly, he is a British born subject, who offers a elaim upon the ground of his being a resident merchant of Portugal, although at the time of the first adjudication, he was not domiciled in that country. The claimant makes an affidavit at London, in June, 1815, in which he describes himself, as "of the city of Lisbon, in Portugal, now in London on mercantile business," swears to the property in himself, and that at the time of the shipment and capture, he was a domiciled subject of Portugal, and had resided in Lisbon for several years preceding the capture, and until the 12th of June, 1814," when he left Lisbon for Bordeaux, and "has since arrived," (without saying when,) "in this city on mercantile business;" that he still is a domiciled subject of Portugal, &c. "The native character easily reverts," Sir W. Scott; and it is so, not merely because says a The Dos Hermanos, 2 Wheat. 76. 98. b La Virginie, 5 Rob. 98. 1818. The Friendschaft. |