one half to the use of the United States, and the other half to the use of any person or persons, citizens of the United States, who will inform and prosecute for the same; and shall be liable to be seized, prosecuted, and condemned, in any circuit or district court of the United States, which shall be holden within and for the district where the seizure shall be made."

The condition of the bond stated in the plea, corresponded exactly with that required by the 2d section of the act.

The 70th section of the act of 2d of March, 1799, vol. 4. p. 390. makes it the duty of the several officers of the customs, to seize any vessel liable to seizure, under that or any other act of congress respecting the

revenue.

C. Lee, for the plaintiff in error.

The question is, whether the act of congress does not impose a disability upon the vessel itself?

This vessel was clearly within the literal prohibition of the act. She was "owned wholly by a person resiIdent within the United States." She did "depart therefrom after the 1st day of July (then) next." She did "proceed from an intermediate port or place, to a place in the West Indies, under the acknowledged government of France." She was also a vessel which, "in a voyage *thereafter commencing, and before her return within the United States," was "voluntarily carried, or suffered to proceed, to a French port." She` had, therefore, done and suffered every act which, according to the letter of the law, rendered her liable to forfeiture, seizure and condemnation.

It is true, that the decision of this court, in the case of the Charming Betsey, ante, vol. 2. p. 115. seems at first view to be against us. But the present question was not made, and could not arise, in that case, because that vessel had not been to a French port, nor had she returned from a French port to the United States. If such a trade as the present case presents were to be permitted, the whole object of the non-intercourse act would be frustrated. A vessel of the United States may, according to the judgment in the case of the Charming Betsey, be sold and transferred to a Dane,

Sands

v.

Knox.

* 502

Sands

V.

Knox.

503

and he may trade with her as he pleases; but we say it is with this proviso, that he does not send her from a French port to the United States. He takes the ves sel with that restriction. If he trades to the United States, he is bound to know and respect their laws. The intention of the law was not only to prevent American citizens, but American vessels, from carrying on an intercourse with French ports.

The case of the Charming Betsey was under the act of February, 1800; but the present case arises under that of 1798, which is very different in many respects.

The opinion in that case, so far as it was not upon points necessarily before the court, is open to examination.

Neither the words of the law, nor the form of the bond, make any exception of the case of the sale and transfer of the vessel before her return. If, therefore, a sale is made it must be subject to the terms of the law; and although the vessel may not be liable to seizure upon the high seas, yet upon her return to the United States, it became the duty of the custom-house officer to seize her. The law ought to be so construed as to carry into effect the object intended. That object was, to cut off all intercourse with France, and by that means compel her to do justice to the United States. But if this provision of the law is to be so easily eluded, France will be in a better *situation than before, for she will receive her usual supplies, and we shall be weakened by the loss of the carrying trade.

Bayard, contra, was stopped by the court.

MARSHALL, Ch. J. If the question is not involved, whether probable cause will justify the seizure and detention; if there are no facts in the pleadings which show a ground to suspect that there was no bona fide sale and transfer of the vessel, the court does not wish to hear any argument on the part of the defendant in

error.

It considers the point as settled by the opinion given in the case of the Charming Betsey, with which opinion the court is well satisfied.

The law did not intend to affect the sale of vessels of

the United States, or to impose any disability on the vessel, after a bona fide sale and transfer to a foreigner.

Judgment affirmed.

Sands

V.

Knox.

RANDOLPH v. WARE.

a merchant's

THIS was an appeal from a decree of the circuit A promise by court for the district of Virginia, which dismissed the factor that he complainant's bill in equity.

done,

would write to Ware, the executor of Jones, surviving partner of the to get insuhis principal house of Farrel & Jones, British merchants, had in rance the same court, at June term, 1800, obtained a decree does not bind the principal against William Randolph, administrator de bonis non, to insure. with the will annexed, of Peyton Randolph, for a large *sum of money, with liberty to William Randolph to file this bill against Ware, for relief in regard to 50 hogsheads of tobacco, shipped in September, 1771, in the ship Planter, Captain Cawsey, and consigned to Farrel & Jones; a credit for which had been claimed, but was by the decree disallowed.

The tobacco never came to the hands of Farrel & Jones, having been lost at sea without being insured. The appellant contended that he was entitled to a credit for the customary insurance price of the tobacco, viz. 10l. per hogshead, with interest.

1. Because, from the usage of the trade between the Virginia planter and the British merchant, it was the duty of the latter to have insured the tobacco, and that having failed so to do, he is responsible as insurer.

2. Because Thomas Evans, the appellee's agent for soliciting consignments and managing this business, having promised to get the insurance done, it is equivalent to the promise of his principals, Farrel & Jones,` and they are responsible for the consequences.

3. It was contended that the claim, under all circumstances disclosed in the record, if not fit to be decreed according to the prayer of the bill, appears to be of a nature proper to be decided in a court of law, in prusuance of an order of the court of equity, and, there

* 504

v.

Ware.

Randolph fore, that the decree should be reversed, and an order made, directing a trial at law, to ascertain whether the appellee is not liable to the appellant for the value of the tobacco, and the interest from the month of September, 1772, as standing in the place of insurer thereof.

* 505

C. Lee, for the appellant.

1. The common course of the trade was, for the British merchant to cause insurance to be made, upon notice of the shipment of tobacco; and it appears by the letters exhibited in this record, that Farrel & Jones did, without any special orders, cause insurance to be made on some of the tobacco shipped by Randolph's executors.

*Thus, in their letter of August 1, 1769, to Richard Randolph, they say, "We have made the following insurance on the True Patriot, for the two estates, viz. 480. on 40 hogsheads, W. Randolph's estate; 816/ on 68 hogsheads, P. Randolph's," but say nothing of having received orders therefor. And again, August 10, 1769, "We have made 8167. insurance on the True Patriot, on 68 hogsheads which Captain Cawsey informs us he is to have,"

It is true, that on the 15th of August, 1771, they say, Captain Cawsey writes us that he is promised 67 hogsheads of the estate's tobacco, but we have received no orders for insurance." But they had received no orders for the insurance they made in August, 1769, on the 68 hogsheads which Captain Cawsey informed them he was to have. The exécutors had a right to expect, that as Farrel & Jones had made insurance without orders, on the 68 hogsheads, by the True Patriot, they would also have insurance made on the 50 hogsheads by the Planter.

The appellee's amended answer, put in after this point was known, does not pretend that any orders were given for the insurance, made in 1769, on the 68 hogsheads. And in the accounts of Farrel & Jones, there are many charges of premiums on insurances, for which no orders appear to have been given.

2. But the deposition of P. L. Grymes goes to establish an agreement, on the part of Evans, the agent

of Farrel & Jones, to get insurance done upon the 50 hogsheads in question.

This deposition is corroborated by the fact, that in the correspondence produced, there is no letter of the executors, respecting the shipment of that parcel of tobacco. They relied altogether upon the promise of Evans.

No argument against the claim can arise from the length of time which elapsed before it was made. The estate of Randolph was acknowledged to be indebted; the executors, therefore, would not bring a suit. It was time enough to exhibit their claim when suit was brought against them. Besides, from 1774 to 1783, the war interposed; after that time until the suit was brought, the courts of justice were absolutely shut, or legal impediments existed to the recovery of British debts. The executors, also, might have been ignorant of their right. This suit, therefore, ought to be considered as if it had been instituted in 1775.

3. This is a claim proper to be settled in a court of law. There is a difference between a case where the chancellor will order an issue at law to be tried, to satisfy or inform his conscience, and where the whole claim is a matter properly cognizable at law.

P. B. Key, contra.

1. There is no evidence in the record of such a general usage of the trade, as is contended for by the appellant. And if there had been, the voluminous correspondence, exhibited in the cause, shows most clearly that it did not exist in the negotiations between the present parties. For it proves, that in almost every instance, where the Randolphs shipped tobacco, they ordered insurance to be made at the time they gave notice of the shipment. Farrel & Jones, in their letter of August 6th, 1770, (stated in the appellee's answer,)say, "We made no insurance on the Virginian, though we were a little uneasy that so large a quantity as 66 hogsheads were ventured home without it, for it is our rule not to make any insurance, without orders, upon tobacco; which you will please to remember."

On the 15th of August, 1771, they say, "Captain Cawsey writes us that he is promised 67 hogsheads of

VOL. III.

Randolph

V.

Ware.

* 506