sailed with the intent of cruizing against Spain. It is true that she went to Buenos Ayres, and sailed under the colours of that government on a second cruize, during which this capture was made; but, there is no satisfactory evidence that the American ownership ever ceased, or that there was a real, bona fide sale at Buenos Ayres. If such a sale had really taken place, it was perfectly in the power of the captors to have proved it, in the clearest manner. A bill of sale is the customary and universal document by which the ownership of vessels is evidenced; and the want of any document of this nature, or of any direct and positive evidence of an actual sale, leaves no doubt in the mind of the Court, that no such sale ever was made. The consequence is, that the capturing vessel must still be considered, as owned in the United States; and, according to the decisions which have already been made, the capture was illegal, and the property must be restored to the original Spanish owners. Sentence reversed. 1821. The Concep tion. H. and others, merchants in Baltimore, consigned a vessel and cargo to W. and others, merchants in Amsterdam, with instructions to them respecting her ulterior destination, which showed, that on the failure of getting a freight to Batavia, or of selling the vessel at a price limited, she was to proceed to St. Petersburg, and there take in a return cargo of Russian goods for the United States, but with instructions to the master committing to him the management of the ulterior voyage. No freight to Batavia could be obtained, and the vessel could not be sold for the price limited at Amsterdam; and W. and others, purchased in Amsterdam, with the concurrence of the master, a return cargo of Russian goods, partly with the money of H. and others, and partly with money advanced by themselves. On the return of the vessel to Baltimore, H. and others objected to the purchase of this cargo in Amsterdam, as being contrary to express orders, and gave notice to W. and others, of their determination to hold them responsible for all losses sustained in consequence of this breach of instructions; but received the goods and sold them. W. and others brought an assumpsit against H. and others, to recover from them the monies advanced. The declation contained the three usual money counts. Held, 1st. That the plaintiffs had a demand in law against the defendants, which could be maintained in this form of action. 2dly. That whether the plaintiffs could, or could not, be made responsible in any form of action which might be devised for the possible loss resulting from the breaking up of the intended voyage to St. Petersburgh, the defendants were not entitled to a deduction from the plaintiffs' demand, for the amount of such loss. THIS was an action of assumpsit brought in the Circuit Court of Maryland, by the plaintiffs, who were merchants of Amsterdam, to recover from the defendants, merchants of Baltimore, a sum of money advanced by the plaintiffs in Amsterdam, for the cargo of the Henry Clay, a vessel belonging to the defendants, which had been consigned by them to the plaintiffs, with an outward cargo, and with orders respecting her ulterior destination, which showed, that on the failure of getting a freight to Batavia, or of selling her at Amsterdam, she was to go to St. Petersburg, and there take in a return cargo of Russian goods for the United States. The plaintiffs purchased in Amsterdam, with the concurrence of the master, a return cargo for the Henry Clay, partly with the money of the defendants, and partly with money advanced by themselves. On her arrival at Baltimore, the defendants objected to the purchase of this cargo in Amsterdam, as being contrary to express orders, and immediately gave notice to the plaintiffs of their disapprobation of the transaction, and of their determination to hold them responsible for all losses sustained in consequence of this departure from instructions. They, however, received the cargo, and sold it. The declaration contained three counts: the first, for money lent and advanced to the defendants; the second, for money laid out and expended for their use; and the third, for money received by them for the use of the plaintiffs. On the trial of the cause in the Circuit Court, the defendants prayed the Court to instruct the jury, that upon the whole evidence, which is spread on the record, "the plaintiffs have not any demand in law against the defendants which can be maintained in this action; but that, if they have, the defendants 1821. Willinks V. Hollingsworth. 1821. Willinks are entitled to a deduction from the same, of the amount of the loss which the jury shall find the said defendants sustained, by reason of the alteration Hollings aforesaid, in the destination to St. Petersburg, of the said ship, and the loading her as aforesaid at Amsterdam." On this motion the Judges were divided in opinion, and the division certified to this Court. worth. The evidence principally consisted of two letters, dated the 29th of April, 1815, written by M'Kim, one of the defendants, addressed, the one to the plaintiffs, the other to the master of the Henry Clay. That to the plaintiffs was as follows: "Gentlemen-The owners of the ship Henry Clay having appointed me the ship's husband for this voyage, and from the introduction of our mutual friends, Robert Gilmor and Sons, I have been directed by the owners to consign the ship to your house, also that part of her cargo which I consider belongs to her owners jointly, agreeable to the invoice, amounting to 1,363 dollars 40 cents. "You will find, that the owners of the ship have shipped tobacco on their separate accounts; the proceeds are to be placed to the credit of John M'Kim, jun. to remain a fund for the purpose of loading the ship if she should proceed to St. Petersburg. The freight and primage, and also Captain Charles Gantt's bills, which are now enclosed, drawn on you for the sum of 6,550 guilders, are to constitute part of the funds for the loading of the ship. "Our wish is, in the first place, if a good freight or charter can be had for the ship to Batavia, that she should proceed there in preference to any other place. "And, secondly, if the ship can be sold for 8,000 pounds sterling, you will dispose of her rather than send her to St. Petersburg." The letter then proceeds to give such a description of the ship as might enhance her value in the estimation of a purchaser, and then adds, "If the Henry Clay proceeds to St. Petersburg, we must depend on your placing funds there to purchase a cargo of iron, hemp, and other goods. If the funds we have placed in your hands should fall short of loading her, Messrs. Gilmor and Sons have written you to make us any advances that may be deficient. Agreeable to the estimate, what we have ordered from St. Petersburg, will not exceed 45,000 dollars, and you may rest assured, that any sum advanced us will be remitted to you as soon as we know the amount." The letter to the master was in these words: "Dear Sir-The ship Henry Clay is given you in charge, that you proceed with all possible despatch for Amsterdam, and it is recommended that you sail north-about at this fine season of the year. The owners of the ship have the greatest confidence in your good management; that you will take care that your disbursements in every foreign port may be as moderate as possible; that you will purchase every article yourself on the lowest terms that may be required for the ship; that you will use the greatest economy in all your expenditures. After your arrival at Amsterdam, your first object is a 1821. Willinks V. Hollings worth. |