SCHOONER

The bond given by such vessel is that she will not PAULINA's be employed in any foreign trade.

CARGO บ.

This exemption from the necessity of relanding the U.STATES. cargo, proves the intention of the legislature that such craft might be employed in lading vessels. This employment is not contrary to the provisions of either the original or supplemental act.

If, then, the May-flower had trans-shipped her cargo in the port in which she was laden, it is apparent that no part of the law would have been violated.

'The section under consideration inflicts forfeiture on any ship or vessel which shall depart from any port of the United States without a clearance or permit.

If by law this would produce a forfeiture of the cargo when on board the Paulina, it is to be inquired whether, under this libel, the fact of her having passed out of one port into another without a clearance or permit, is examinable.

The libel charges the simple fact of trans-shipment, without alleging the only circumstance which could render such trans-shipment criminal. The question. then, of a departure from the port of Providence into that of Newport is not brought before the court. It does indeed appear in the evidence that, in consequence of an opinion among the revenue officers, as well as others, à clearance in such a case was not requisite the May-flower carried a considerable part of her cargo to the Paulina without having obtained permits. But the court cannot notice this fact unless the prosecution had, in some degree, been founded upon it.

It is, then the opinion of the majority of the court that, as this case stands, the sentence cannot be sustained under the 3d section of the act of January, 1808. No opinion is given on the construction of that act in a case of trans-shipment from a vessel which has actually passed from one district to another without a clear

ance.

The libel also claims a forfeiture under the 50th sec

tion of the collection law, and under the 2d section of SCHOONER the act commonly called the additional act.

PAULINA'S

CARGO

υ.

It has been very truly observed that the collection law is in itself totally inapplicable to the case, and can U.STATES. only be relied on for the purpose of explaining the 2d section of the additional act which refers to the collection law.

The operative words of the 2d section are "No ship or vessel shall receive a clearance unless the lading shall be made hereafter under the inspection of the proper revenue officers subject to the same restrictions, regulations, penalties and forfeitures as are provided by law for the inspection of goods, wares and merchandize imported into the United States upon which duties are imposed."

Had the sentence terminated with the word "officers," it is admitted that its only operation would have been to exclude from a right to a clearance a vessel laden in a different manner from that which the act prescribes. The doubt grows out of the residue of the sentence.

This section does not, in terms, refer to the 50th section of the collection law. Whether, in strict grammatical construction, the adjective subject" agree with and refer to the words lading," "inspection" or "officers," still the restrictions, regulations, penalties and forfeitures" which are inflicted, are those which are provided by law for the inspection of goods, not those which are provided by law for unlading them. The word inspection is the governing word which explains the meaning of the sentence; and the provisions for the inspection of goods contain restrictions, regulations, penalties and forfeitures; but they do not affect the cargo.

It is difficult to read the sentence without being impressed with the opinion that the sole penalty intended by the legislature was the denial of a clearance. This will strike any person as the principal object of the clause. What follows is expressed with some confusion and would not seem to constitute the most essential part of the sentence. It cannot be believed that the legisla

SCHOONER ture could intend to inflict so heavy a forfeiture under PAULINA'S such cloudy and ambiguous terms. The natural as well CARGO as usual course would be to inflict the forfeiture in div. rect and substantive terms, not by way of loose uncerU.STATES. tain reference.

But if this section be construed as the Libellants construe it, then if the value of $400 be put on board a vessel, not only the goods so put on board, but the vessel itself shall be forfeited. For what purpose, then, direct that she shall not receive a clearance? The legislature can scarcely be suspected of making a solemn regulation which, in terms, forbids its officers to grant a clearance to a vessel, which vessel is, by the same sentence, confiscated.

It is the decided opinion of the court, that no forfeiture is incurred under this section of the act.

The majority of the court is of opinion that the sentence of the Circuit Court, condemning the cargo of the Paulina, is erroneous and ought to be reversed.

The court certified that there was probable cause of seizure.

The Chief Justice observed that three of the judges who had heard the argument in the present case, and one who did not hear it, but who had heard the points argued in another case, concurred in this opinion, and that the other judges concurred in the result of the opinion.

JOHNSON, Justice, observed that he dissented from the opinion just delivered by the chief justice upon one ground only.

He was of opinion that the trans-shipment, if with intent to prosecute a foreign voyage, in violation of the embargo, subjected the goods to forfeiture. But as the evidence of that intent was doubtful, he was of opinion that the cargo should be acquitted; and two other judges concurred with him in opinion.

Sentence reversed.

of guaranty,

ERROR to the Circuit Court for the District of Rhode Island, in a suit in equity, brought by Russell, against The construeClark in his life time, as surviving partner of the firm tion of a letter of Clark and Nightingale; to recover from him the of credit, or amount of sundry bills of exchange, drawn by one Jon- must be the athan Russell, for the use of Robert Murray & Co. same in a whose agent he was, upon James B. Murray, in Lon- ty, as in a Court of equidon, and indorsed by the Complainant, Nathaniel Rus- Court of law; sell, upon the faith of two letters written to him by which might Clark and Nightingale, in the following words :

Providence, 20th January, 1796.

"Nathaniel Russell, Esq.

DEAR SIR,

and any facts

be introduced into one Court, to explain the transaction, may be introduced into the other. On the question of fraud also, the rem

Where the

knowledge of

Our friends, Messrs. Robert Murray & Co. mer- edy at law chants in New York, having determined to enter large- is complete. ly into the purchase of rice, and other articles of your only ground produce in Charleston, but being entire strangers there, of equitable they have applied to us for letters of introduction to our the discovery jurisdiction is friend. In consequence of which, we do ourselves the of tacts solely pleasure of introducing them to your correspondence as within the a house on whose integrity and punctuality the utmost the Defendependence may be placed; they will write you the na- dant, and the ture of their intentions, and you may be assured of their complying fully with any contract or engagements they discloses no may enter into with you. The friendship we have for such facts, these gentlemen, induces us to wish you will render tiff supports them every service in your power; at the same time, his claim by we flatter ourselves the correspondence will prove a mu- his own postual benefit.

We are, with sentiments of esteem,

Dear Sir,

Your most obedient servants,

CLARK & NIGHTINGALE."

Defendant by

his answer

and the Plain

evidence in

session unaided by the confessions of the Defendant, the Plaintiff should be dismissed from the Court of Chancery and

RUSSELL

Providence, 21st January, 1796,

v.

CLARK'S

EX'RS.

permitted to assert his

rights in a

To charge

one person

of another, the

undertaking must be clear and explicit. It is the duty

"Nathaniel Russel, Esq.

DEAR SIR,

We wrote you yesterday, a letter of recommendation in favor of Messrs. Robert Murray & Co.-We Court of law. have now to request that you will render them every assistance in your power.-Also that you will, immediwith the debt ately on the receipt of this, vest the whole of what funds you have of ours in your hands, in rice on the best terms you can. If you are not in cash for the sales of the China and Nankins, perhaps you may be able to raise the money from the Bank, until due; or purchase the rice upon a credit, till such time as you are to be in cash for them; the truth is, we expect rice will rise, and we want to improve the amount of what property we can muster in Charleston, vested in that article, at the current price; our Mr. Nightingale is now at Newport, where it is probable he will write you on the subject.

of him who gives credit to another

upon the responsibility or undertaking of a third person, immediately to give

notice to the latter of the extent of his engagements. A fraudulent recommendation, will subject the person giving it, to the

damages sus

person trusting to it.

We are, dear sir,

Your most obedient servants,

CLARK & NIGHTINGALE."

The bill stated, that in February, 1796, Jonathan Rustained by the sell, arrived in Charleston, from New York, bringing a letter of credit from the house of Joseph & William Russell, of Providence, with whom the Complainant had responsive to only a slight acquaintance, but believed them to be in good credit.

An answer,

the bill, is

evidence in favor of the Defendant.

A misrepre

sentation of

That Jonathan Russell informed the Complainant, that when he left New York, he was authorized by R. the solidity of M. & Co. to say, that they would forward to him at merchantile Charleston, letters of guaranty from their friends, Clark nder a mis- & Nightingale, of Providence, addressed to the Complainant, and that he expected soon to receive them.

house made

take of the

fact, without any interest er fraudulent intention, will not gustain an

That he soon afterwards, presented to the Complainant, the before mentioned letters of Clark & Nightaction, altho' ingale, of the 20th and 21st of January, 1796, and that may have suf. Confiding in the responsibility and integrity of C. & N. fered damage and in the purity and simplicity of their views, he in

the Plaintiff