12 U.S. 359
8 Cranch 359
3 L.Ed. 589
THE FRANCES, BOYER, MASTER. (French's claim.)
Mar. 15, 1814
THIS, like the former cases of the Frances, was an appeal
from the United States' Circuit Court for the Rhode Island
William French, the Appellant, a citizen of the United States, claimed fourteen boxes of merchandize shipped on board the Frances by James Auchincloss, of Paisley, in Scotland, to A. and J. Auchincloss of New York, on their account and risk, with orders to remit the proceeds to the shipper for payment. The Claimant alleged that the goods had been previously ordered by him through A. and J. Auchincloss, to be imported on his account and risk.
Further proof was ordered by the Court below, to consist of the original order for the merchandize, and all the letters and correspondence relating to it, and of all the proofs of property in the Claimant.
Under this order, the Claimant produced a letter dated Baltimore, 20th February, 1812, signed by him self, and addressed to A. and J. Auchincloss, requesting them to order from their friends in Scotland, good not exceeding in value 1,000l. sterling, to be shipped so soon as the orders in council should be revoked.
On the 20th of September, 1812, A. and J. Auchincloss wrote a letter to the Claimant, advising him of the capture of the Frances with the goods, said to be shipped on his account, to their address, and desiring him to take the necessary steps to have his property cleared.
To these letters were added affidavits of the Claimant, tending to prove the property in him, together with an affidavit of Darius Hodson, that he forwarded the above last mentioned letter to the Claimant at Providence, by his request; and that, when he took it from the file, it was a whole sheet directed to the Claimant from New York, by J. Auchincloss, jun.; but that, in order to save postage, he, the deponent, tore off the outside leaf, not thinking, at the time, of its being of any importance.
Upon this proof, the claim was rejected in the Court below, and the property condemned to the captors.
In this Court the cause was argued by JONES for the Appellant, and DEXTER for the captors; and on
Tuesday, the 15th of March. Absent. MARSHALL, Ch. J.
WASHINGTON, J. delivered the following opinion of the Court: This is the claim of William French to a part of the cargo of the Frances, shipped by James Anchincloss, of Paisley, in Great Britain, to A. and J. Auchincloss, of New York, on their account and risk. By the correspondence between the consignor and consignees, which was exhibited to the Court below, under an order for further proof, it is somewhat doubtful whether these goods were to be sold as the property of the consignor, or of the consignees. In the letter from the former to A. Auchincloss, dated the 17th of July, 1812, he says, 'You will lose no time to transmit immediately, on the receipt of the invoice by the Fanny as well as by the Frances, to the full amount of the invoices; as thereby, and no other way, is your credit and John's to be restored here. Also remit, as I have often told you, to clear off your old debt; and, for God's sake, let us have no more failing in the family. You will observe that the goods per Fanny and Frances are principally bought upon a credit of 3, 4 and 5 months—this the consequence of failing.'
In another letter of the same date, from the same to the same, he says, 'By this ship, the Frances, I have shipped you 14 boxes of different kinds of goods, which I beg you will lose no time to dispose, as by early remittances you will undoubtedly strengthen your credit.' In another part of this letter he says, I beg you will lose no time to remit largely, say 3 or 4,000 pounds. Remember the old cash account with the Paisley Banking Company.' These letters, so far as they throw light upon this transaction, intimate very strongly that A. and J. Auchincloss were to dispose of these goods upon their own account, and as the purchasers of them. But to produce a change of property from the shipper to the consignee, it was essentially necessary that the goods should have been sent in consequence of some contract between the parties, by which the one agreed to sell, and the other to buy. Had the language of these letters been more explicit than it is to prove that the intention of the consignor was to vest the right of property in the consignee, it would not have been sufficient to effect such a change, until the goods were received, or some evidence given of the agreement of the consignee to take them on his own account. No order from A. and J. Auchincloss to the consignor of this cargo, authorizing the shipment of it, was produced or offered to be produced in the Court below; and this Court, therefore, is warranted in believing that none such was ever given. Indeed, no interest whatever in these goods is asserted to have existed in A. and J. Auchincloss, but the same is claimed by Wm. French, a citizen of the United States, who, under the order for further proof, produced, in support of his claim, a letter from himself to A. and J. Auchincloss, dated the 20th February, 1812, in which he requests them to order from his friends in Scotland, a quantity of goods enumerated in the letter not to exceed 1,000l. sterling, to be shipped as soon as the orders in council should be revoked, and adding that he should consider the goods at his risk from the time they should be shipped; also an invoice of these goods sent by A. and J. Auchincloss to Wm. French, together with a letter from them, dated the 20th of September, 1812, advising him of the capture of the Frances with the goods shipped on his account, and recommending it to him to take the necessary steps to vindicate his right to the property. This letter made its appearance in the Court below, with the outer leaf, on which the postmark would have been placed, had there been any, torn off. To do away the suspicion which this circumstance might well excite, the affidavit of Darius Hodson was produced, in which he states that he forwarded this letter to the Claimant, at Providence, having first torn off the outer leaf with a view to lessen the rate of postage.
The affidavit of the Claimant is added, which is fully to the purpose of supporting his interest in these goods, so far as his order to A. and J. Auchincloss can vest such an interest in him. But passing over those observations which might fairly be made upon the mutilated state of the letter from A. and J. Auchincloss to the Claimant, and the suspicious manner in which that circumstance is attempted to be explained, it may be observed that the claim of Wm. French is in no respect stronger than if it had been made by A. and J. Auchincloss. Admit that he wrote to A. and J. Auchincloss the letter of the 20th of February, 1812, and received from them that of the 20th of September, the inquiry still remains to be answered, where is the order for this shipment from A. and J. Auchincloss as the agent of the Claimant?
The truth is, that in whatever light this question is viewed, these goods were at the risk of the shippers until they should be received by the consignee; and, consequently, were, by the capture, made good prize, as property belonging to the enemy.