SCHOONER JANE 2. HARPER, in reply. The United States are bound to make out full proof. U.STATES. If the fact be so, much better proof might have been had on the part of the United States. February 24th.... WASHINGTON, J. delivered the opinion of the Court as follows; This was an information filed in the District Court of the United States, for the district of Maryland, against the schooner Jane and her cargo for a breach of the law interdicting the commercial intercourse between the United States and Great Britain and France, and their dependencies. The particular charge alleged in the information is, that this vessel had imported into' the port of Baltimore from some place in the island of St. Domingo, a dependence of France, 1920 bags of coffee in violation of the above law. To establish this charge two witnesses were examined on the part of the United States, who concurred in testifying that they were at Port au Prince in the island of St. Domingo, from about the middle of August to the middle of September in the year 1809, and that they saw lying there a schooner called the Jane, of Baltimore, Vezey, master. That her cargo consisted of flour, which she discharged at that place and took in a quantity of coffee in bags, and that she sailed from Port au Prince about the 10th of September. One of these witnesses thinks that the name " Jane" was painted on the stern of the vessel, but is not positive as to that fact; nor can either of the witnesses say that the vessel they saw at Port au Prince was the same which was seized by the collector of the port of Baltimore. The seizure of the vessel and cargo, which are the subject of this controversy, was made between the 1st and 18th of October, 1809. Upon the above evidence, the District Court dismissed the information and ordered restitution of vessel and cargo. This writ of error is taken to the sentence JANE v. pronounced by the Circuit Court, which, upon an ap- SCHOONER peal, reversed that of the District Court and condemned both the vessel and cargo. For the Claimants it is contended that the evidence in this case is merely pre- U.STATES. sumptive, and is much too light to establish the fact, necessary to be made out, that the vessel seized by the collector of Baltimore is the same vessel which was seen by the witnesses at Port au Prince. If the latter part of the objection to the evidence be well founded it is fatal to the sentence, because although presumptive evidence is clearly admissible, and may of itself be sufficient to support, in many instances, even a criminal prosecution, yet the circumstances proved ought not only to harmonize with each other, but they ought in themselves to be so strong as fully to satisfy the mind of the fact they are intended to establish. In this case there is such a coincidence in the circumstances proved in relation to the vessel, the cargo, and the voyage, as to impress the mind with a conviction, almost irresistable, that the schooner Jane seen, by the witnesses at Port au Prince, is the identical vessel against which this prosecution is carried on. That vessel was a schooner, the reputed name of which at Port au Prince was the Janc, of Baltimore, Vezey, master; which took in, at that port, coffee in bags and sailed from thence about the 10th of September. The vessel in question is a schooner, bears the same name, was commanded by a captain Vezey, her cargo coffee in bags, and she arrived at Baltimore between the 1st and and 10th of October, about the time when a vessel which had left Port au Prince on the 10th September might reasonably have been expected to arrive. It is barely possible that the facts proved in this case should apply to any other vessel than the one in question; and in the absence of all explanatory evidence, which it was so entirely in the power of the Claimants to have produced, is sufficient to deprive him of this slight ground to stand upon. It is true that the proof of identity might have been strengthened by evidence that this vessel sailed from Baltimore, of the time when she sailed, the port for which she cleared, and the cargo she took out with her. But it does not appear in this record, nor JANE SCHOONER does it necessarily follow, that she sailed from Baltimore on her outward voyage, or that it was in the powυ. er of the United States to prove any of the above facts. U.STATES. On the other hand, nothing could have been, more easy than for the Claimants to have proved them, and still further to have proved, if their case would have admitted it, that the evidence on the part of the United States did not apply to this vessel. The United States are not The Court is of opinion that there is no error in the sentence pronounced by the Circuit Court, and that the same should be affirmed with costs. LEE v. MUNROE & THORNTON. Absent....JOHNSON, J. and TODD, J. THIS was an appeal from the decree of the Circuit bound by the Court for the district of Columbia, in a suit in Chancedeclarations of ry, brought by Lee against Thomas Munroe, superintheir agent, founded upon tendant of the city of Washington, and William Thorna mistake of ton, the survivor of the late board of commissioners for fact, unless it that city. The object of the bill was to obtain a disclearly appear that the agent count of 3,000 dollars upon a judgment, which Munroe, as superintendant, had obtained against Lee upon his bond. scope of his The ground upon which this set-off was claimauthority, and ed, was this. Morris and Nicholson were indebted to was empow Lee in that sum by promissory notes, and offered paypacity of agent ment in certain city lots, the title whereof was in the to make such commissioners of the city. Morris and Nicholson hav was acting within the ered in his ca. declaration. ing paid money in advance to the commissioners, were, as they supposed, entitled to demand from them the conveyance of the lots in question, under existing contracts between the commissioners and themselves. Whereupon Lee applied to the commissioners to know of them whether they would convey the lots to him, upon the order of Morris and Nicholson. This they promised to do, and made an entry of it in their journal. Lee then agreed with Morris and Nicholson to receive the lots in payment, and upon receiving their order to the commissioners to convey them to him, gave up to Morris and Nicholson their notes for $,000 dollars, which were the LEE v. evidence of the debt. On presenting this order to the commissioners, they refused to convey the lots, unless he would pay them the purchase-money due thereon to MUNROE & them from Morris and Nicholson, alleging that the ba- THORNlance was against Morris and Nicholson in their account with the commissioners. Morris and Nicholson shortly afterwards became insolvent. C. LEE, for the Appellant. This case cannot be distinguished from that of a mortgagee, who knowing another person is about to lend money upon the mortgaged premises, informs him that his mortgage is satisfied. If it be not, he shall be postponed to the 2d mortgagee. 2 Vern. 554. Ibbottson v. Rhodes. 1 P. Wms. 394. Mosatta v. Murgatroyd. 4 Dall. Levy v. Bank U. S. The Commissioners were acting within the scope of their authority. It was their business to keep the accounts with Morris and Nicholson, and to know the balance; it was also their business to convey the lots. It is immaterial what was the real state of accounts at the time. They acted at their peril. The question is, who shall bear the loss? Not he who was in no fault, but he whose duty it was to know the truth, and who by his negligence has brought this loss upon the Plaintiff. JONES, contra. This case does not depend upon the principle of first and second mortgagee. The bill does not seek relief personally against the superintendent, or the surviving commissioner, but is intended to charge the public with this loss. The commissioners were public officers; they had no interest in the business. It was a simple mistake of a fact on their part, which cannot bind the U. States. It is an attempt to set off unliquidated damages incurred by these public officers against a judgment debt. Feb. 26th....LIVINGSTON, J. delivered the opinion of the Court as follows: TON. LEE v. This is a bill seeking relief against public officers nominally, but against the United States in fact, for MUNROE & a mistake of the former in a representation made by THORN- them to the Appellant, by which it is alleged, that TON. he has sustained a loss, for the redress of which in damages this suit is brought. It has been contended in this case, that the Defendants having, in their public character as commissioners of the city of Washington, misinformed the Plaintiff as to the state of the accounts between them and Morris and Nicholson, and thereby induced him to relinquish a demand which he had against the latter, he is now entitled to have discounted from a judgment, which they have obtained against him for the use of the United States, a sum equal to the principal and interest of the debt which he lost by the confidence which he placed in them; and this is supposed to be like the case of a party, who being about to lend money on real estate, applies to one who holds a prior mortgage to ascertain whether he has any incumbrance on it. There is no doubt, in such a case, that if the person making the application discloses that he is about lending money on the estate, he will be preferred to the first mortgagee, should the latter deny his having a mortgage, or assert that it is satisfied; and it seems agreeable to the dictates of reason and good conscience, that his claim should be postponed to that of a person whose confidence was inspired by the misrepresentation of one, who was acting for himself, and every way competent to inform him of the truth. But in all the cases which have been decided on this principle, the fraud, for such it is supposed to be, has been practised by a party who has himself an interest in the subject-matter of inquiry, who cannot well be mistaken, and whose conduct therefore ought to be conclusive on him, when the rights of third persons come in question. It is, however, not known to the Court, that the same rule of decision has been extended so as to affect the interests of principals, and particu-· larly of the public, in consequence of similar mistakes made by an agent, nor is it reasonable that such extension should take place, unless it most manifestly appear that the agent was acting within the scope of his authority, and was empowered, in his capacity of agent, to make the declaration or representation which is relied on as the ground of relief. In the present case, the Defendants were employed and authorized by the public to |