nesses misunderstood Johnson; that the knowl, of other countries. 3. The property ought to edge of which the latter spoke was that ac- be restored with costs and damages, because the quired subsequent to the capture; that it could documentary evidence proclaimed the neutral not have related to any other knowledge we character of the ship and cargo. think incontestible, from the single consideration that the evidence in the case proves it to have been inconsistent with the fact. It was not possible, under the circumstances of the case, that such knowledge could have been communicated for want of the means of communication, and that it was not, is positively sworn to by three witnesses whose testimony stands wholly unimpeached. Sentence of the Circuit Court affirmed with costs. The Attorney-General and Pinkney, for the respondents and captors, stated that this was one of the plainest cases for condemnation that ever came into a court of prize, upon two grounds: 1st. That the real property was not in the claimant, but in a citizen of the United States. 2d. That it was taken trading with the enemy. 1. In The Odin,' where the papers were complete, and res gestæ similar to the transactions in this case, confiscation was decreed. [*64 The conduct and resources of the claimant were the same as those of Krefting, The Dane. According to the doctrine of Sir William Scott, exercising ownership by the same master is conclusive; but here the former owner continued to exercise dominion over the thing pretended to be transferred in his own proper person. The ship also continued in her originally A question of proprietary interest, and of trad intended employment, which was another badge ing with the enemy. A PPEAL from the Circuit Court for the District of Georgia. The schooner Rugen and cargo were libeled in the District Court for that district, as a prize of war, either as belonging to the enemies of the United States or as the property of citizens who had been trading with the enemy. A claim was interposed by Mr. Buhring, a subject of the King of Sweden, on the ground that both vessel and cargo belonged to him, and were bona fide neutral property. This claim was rejected by the District Court; which sentence was affirmed by the Circuit Court, and thereupon the claimant appealed to this court. of fraud. The cases cited were of a transfer by the enemy to a neutral, and the former master continued; but here the citizen wishing to trade with the enemy takes a foreign garb to deceive, not a foreign, but his own government. This case is to be arranged under that branch of public law which depends upon the municipal laws of allegiance; and the presumption is more irresistible than in the other, where the property is taken and proceeded against as enemy's property. The vis major, by which it is alleged the ship was compelled to enter an enemy's port on the outward voyage, is not such as would be admitted as an excuse for deviation, even in a fiscal case, or in an action on a policy of insurance. The indorsement of a Charlton, for the appellant and claimant, ship's papers by the enemy's vessel might have stated that the ship was formerly British, had produced a certain effect; but in the view of the been captured, condemned as prize of war in law of nations, a parol order could have no the District Court, and sold by the marshal to effect, tending to confiscation in a prize court, one Bixby, who sold to Buhring, the present or even detention for trial. The falsification elaimant. 1. He cited the case of The Sisters' and spoliation of papers, in this case, would as to the proprietary interest, and argued that alone be sufficient to justify condemnation.' the regularity of the papers is prima facie evi- | *Spoliation of papers may be explained [*65 dence of neutrality, and conclusive, unless re- by the preparatory examinations so as to affect butted by contradictory proof. The primitive the question of costs only; but here, taken in 63*] national character of the ship was connection with the simulated papers, the false changed by condemnation, and the sale to a destination, and the other circumstances of neutral was legal. Testimony was irregularly mala fides, it is conclusive. Much of the eviadmitted, which was neither taken in prepara-dence in the case, according to the strict regutorio nor found on board, nor invoked from larity of prize practice, is inadmissible; but any other captured vessel. 2. The voyage was strictly within the range of neutral rights. If the neutral character of the ship and cargo was established, the destination was immaterial, whether to an enemy or neutral port. But the ship was, in fact, destined to a neutral port, and diverted from her course by the enemy's ressel La Decouverte. False papers may be used, if not to cover enemy's property, or evade belligerent rights; and this court is not bound to take notice of, or enforce, the revenue laws 1.-5 Rob. 141. 2.-1 Rob. 104, The Welvaart. 3.-1 Rob. 139, The Vrow; 3 Rob. 147, The Flora and Commercium; 4 Rob. 166, The Convenientia; [b. 87, The Caroline. the proceedings may be considered as equivalent to an order for further proof. The case of The Sisters was before the Court of Admiralty as an instance court; an equitable title, conflicting with a legal, and there being no constat of property, the court, according to the notions which prevail in England, could not interfere. 2. Supposing the property to be in the claimant, it cannot be restored; he was a resident in the United States, and carried on a trade with the enemy, contrary to the obligations of his tem Wh porary allegiance.' And supposing the ship to Livingston, J., delivered the opinion of the court: It has been contended that this vessel and cargo were bona fide the property of the appellant, a subject of Sweden, who had a right to trade with the enemy of the United States; and that having done nothing to forfeit his neutral character, both the sentences below were erroneous, and ought to be reversed. To entitle himself to such reversal, the claimant has undertaken to show, and insists that he has shown, that at the time of, and previous to, the departure of the Rugen from the United States, she, as well as the cargo on board, was his prop erty, and that he was then, and still is, a subject of the King of Sweden, with whom the United States were at peace. of fraud and perjury which must be waded through in order to obtain them; and then, in case of disaster, to make a court believe that such papers disclosed nothing but the real truth of the case. The whole controversy will then be resolved into the single question, whether, in point of fact, Mr. Buhring, or Messrs. Samuel & Charles Howard, who are citizens of the United States, were owners of the Rugen and her cargo at the time of her sailing from Savannah, and on her return to the United States. It must ever be a painful task to investigate testimony where a result unfavorable to the claimant can only proceed from a conviction that the principal agents in the transaction have acted either fraudulently or con- [*68 trary to their known duty as good citizens. Such is the duty now imposed on the court. The claimant is said to be a Swede. If this be admitted, and it seems not to be denied, we are compelled, by the very suspicious circumstances of this case, to look beyond his national character, and to inquire very particularly into his situation at the time he embarked, or became connected with this adventure. Had he ever been a merchant in his own country, or elsewhere? Had he ever resided in any of our seaports, or carried on business of any kind there, or in any other place? Had he, at any time, means to purchase this vessel and cargo; or was he sufficiently known to have acquired a credit to that extent? These questions were all asked by the advocate of the captors, to which no satisfactory answer was given on the argument; and it is in vain that the proceedings are searched for a solution of either of them at all favorable to the present claim. On the contrary, easily as every difficulty on these points might have been dispelled, if this were a fair proceeding, no The court will now proceed to inquire how attempt of the kind has been made, or if it has, 67*] far Mr. *Buhring has succeeded in estab-it has terminated in establishing that Mr. Buhlishing the facts on which he relies for a restitution of this property. In pursuing this inquiry it may become unnecessary to decide whether the papers which were on board were sufficient to entitle the Rugen to the privileges or national character of a Swedish vessel; because, whatever may be their regularity and effect, yet, if the court shall be of opinion that they were only colorable, and that an American citizen, and not the claimant, was owner of the vessel and cargo, it will not be pretended that belligerent rights can be eluded in this way, or that the subject of a state at war can. under cover of neutral muniments, however regularly procured, or formal they may be, violate with impunity, his duty and allegiance to his own country. So far from such documents, when intended only as a cover, affording any protection to the property, they render the party resorting to them doubly criminal, by the scene 9. A neutral subject domiciled in the belligerent state, is considered as a merchant of that country, so as to render his property taken in trade with the enemy liable to capture and confiscation, in the same manner as that of persons owing per manent allegiance to the state. 3 Rob. 26, The Indian Chief. The converse of the rule is also applied to subjects or citizens of the belligerent state resident in a neutral country, whose trade with the enemy is considered as lawful; except in contraband of war, which is deemed inconsistent with their permanent allegiance, and, it may be added, is equally prohibited to them in their character of neutral merchants. Vide 6 Rob. 408, The Neptunus. ring's situation and circumstances were such as preclude all reasonable doubt of his being any other than the ostensible owner of the vessel and cargo. He was a young man, only twentyone years old, residing, as well as his brother William, in South Carolina, with Mr. Scarborough, Vice-Commercial Agent of the King of Sweden, for the state of Georgia. From this retirement he is drawn, and, for the *first [*69 time, introduced to the notice of the mercantile world by the Messrs. Howard, who appear to be merchants of considerable property and credit, residing at Savannah, in the state of Georgia. Between these gentlemen and Mr. Buhring there could have been but very little previous acquaintance; for the latter arrived at Savannah from Europe only two or three months before we find him engaged in the concerns of the Rugen; and after remaining not more than three or four days in that city he went to reside in the country of South Carolina, whence he did not return to Savannah until he came back with Mr. C. Howard, a very few days before the Rugen sailed. It is not, then, harsh to presume that the strongest and only recommendation of Mr. Buhring was his national character. The Messrs. Howard appear, at the time, to have been in search of a Swede, and were not long in meeting with one whose youth and inexperience well fitted him for the purposes for which, there is so much reason to believe, he was wanted. A feeble attempt, however, has been made to show troublesome task, if he were equal to it, of navigating the Rugen. For this conduct, on the part of Mr. Howard, no other reasonable motive can be assigned than an interest in the vessel and cargo. The allegation of his going after certain funds in Carthagena is not at all made out. The Rugen leaves Savannah on the 5th or 6th of May, bound, as is alleged, for Carthagena, but arrives at Kingston, in the Island [*72 of Jamaica. The court is not at all satisfied with the excuses which have been made for her going there. It does not appear that a vis major of any kind existed. She was neither forced in by adverse winds, nor was she under any restraint from capture. When within only four leagues of the island she was boarded by a British brig of war called La Decouverte, whose commander ordered her into Kingston. He put no prize-master on board; nor did he indorse any of her papers; nor did he keep company with her; and yet we find her doing exactly what she was verbally directed to do. It is faintly pretended that if she had attempted, after that, to go to Carthagena, she could not have escaped the British cruisers which swarmed about the island. But what greater danger, if the property were neutral, would ensue on a capture by any other British vessel than by her going to a British port as prize to the Decouverte, or by her orders? It is believed, then, that her going to Jamaica was voluntary, and formed part of the original plan; which opinion derives considerable support from the fact of insurance having been made, not only for Carthagena, but also for a port in the West Indies; from the nature of the outward cargo; from the readiness with which they consented to dispose of it at that place, and procured another for this country promising a much greater profit than any which at that time could have been imported from Carthagena. There is yet a still stronger circumstance to prove that the destination of the Rugen to Carthagena was fictitious; and that is, her meeting at Kingston a ship called the *which had sailed from [*73 that Mr. Buhring was not without credit as well as funds. To the former point one witness has been examined, and to establish that he was not entirely destitute of property, it has been shown that he actually gave two notes, amounting, together, to about $4,300, for the Rugen and her cargo, in the month of May, 1813, payable in four months after date; that these notes, as they became due, were taken up by him with great punctuality at one of the banks in Savannah. Whether these notes were really made at the 70] time when they bear date may *well be doubted; but it admits of no doubt that they were discharged with the proper moneys of the Messrs. Howard, which had almost the moment before been drawn, by one of them, out of the bank, and put into the hands of Mr. Buhring for that purpose. With the funds, then, of Mr. Howard, and not with those of Mr. Buhring, were these notes taken up; and a contrivance, which was intended to make Mr. Buhring appear as a man of property, has not only altogether failed, but has added very considerable weight to the suggestion of the captors, that he was a young man totally destitute of the means of purchasing and paying for the property which, it is now alleged, belonged to him. But we now find Mr. Buhring at Savannah; and what is done with him? or what does he do with himself, on his arrival there? Does he go about to purchase a vessel? Does he, when he is told that the Rugen belongs to him, take any measures to fit her out? Does he provide a crew? Does he agree for their wages? Does he purchase a cargo? Does he see to its being put on board? Does he effect insurance? Or is he found doing any one act which might naturally be expected from an owner? All this trouble had already been most kindly taken off his hands by his new friend and acquaintance, Mr. Howard. This gentle man had already (if we are to believe the history of this transaction as it is narrated by the claimant) provided him with a vessel and cargo, although it does not appear that he had instructions or funds of Mr. Buhring for the purpose. It is true, that with a caution that was very ex-Wanschop, 71*] cusable, considering the circumstances Savannah but little before the Rugen. On of Mr. Buhring, the bill of sale which had been board of that vessel we find Mr. William Buhexecuted by the marshal, with a blank for the ring, a brother of the claimant, and we have name of the vendee, was not put into the pos-every reason to believe that she belonged, with session of Mr. Buhring, but carefully retained her cargo, to the same concern. The Wanschop, by the Messrs. Howard, they executing to him it is also said, was destined for Porto Bello, on one in their own names, although they now say the Spanish Main; but by a strange coincidence they never were the owners of the vessel. And of events, which can scarcely have been the ef even this bill of sale, it is very probable, re-fect of chance alone, she also gets out of her mained in the custody of Mr. Samuel Howard course, falls in with the same British vessel of during the whole of the voyage to Jamaica and war which afterwards boarded the Rugen; reback to the United States. Everything being ceives the like order to proceed to Kingston, now in readiness for their departure from Savan- which she also very promptly, and without any nah. Mr. Buhring appears on board, and is in-apparent reluctance, complied with. The busitroduced to the mate and crew, not merely as owner of vessel and cargo, but as master for the voyage. Whether any surprise was excited on board by the new character in which the claimant appeared, or whether they expressed any reluctance at placing themselves under his command, we know not; nor is it a fact very necessary to ascertain, because they must soon have discovered that Mr. Samuel Howard, whose friendship for Mr. Buhring seems to have had no limit, and in whose seamanship they may have had full confidence, intended to go with the vessel, and relieve Mr. Buhring from the ness of these two vessels is managed by the same house in Kingston, and the proceeds of both of their cargoes are invested in molasses, rum, etc., which composed the return cargo of the Rugen. If the property claimed were bona fide Swedish, it would be superfluous to inquire whether the Rugen's going to Jamaica were voluntary or by coercion, a subject of Sweden having, for aught that appears, as good right to trade there as at Carthagena. But if it belonged to the American gentlemen, who have had an agency so conspicuous in the whole of this business (and that it did is our unanimous opinion), it will not be pretended that they could go to Kingston unless by compulsion, or that they had any right during the late war to purchase and bring a cargo from any British port to this or any other country. lotteries, *under which authority they [*76 had drawn one class, and had arranged and published a scheme of a second class. That the plaintiff below, and one Joseph Milligan, projected another scheme, which they sent in to the president and managers, accompanied by a proposition in writing, in the words and figures following: The court having already expressed its opinion that this vessel and cargo did not belong 74*] to the claimant, but to citizens of the United States, the latter having been purchased at Kingston, as is believed, with their funds, it becomes quite unnecessary to inquire what was the real destination of the Rugen on her leaving Kingston; whether she was bound, in fact, to Amelia Island, or to the United States; although it might not be very difficult to come to a satisfactory conclusion that Hardwicke, in Georgia, was her real port of destination. But this examination is unnecessary; for the owners, being American citizens, are equally guilty of trading with the enemy, whether that trade were carried on between a British port and the United States or between such port and any foreign nation; and in the present case, if the court be correct in the view which it has taken of the evidence, the offense of trading with the enemy was complete the moment the Rugen It was admitted that this scheme was apsailed from Savannah with an intention to proved of and adopted by the president and carry her cargo to Kingston, in Jamaica. Upon managers, and their own scheme was abanthe whole, without taking notice of many of doned; that the proposition of the plaintiff and the arguments urged by the advocates of the Milligan was accepted by them, and became a captors in favor of condemnation, and which binding contract between the parties. Evidence are entitled to great consideration, the court is was also offered to prove that under the conunanimously of opinion that the decree of the tract a schedule specifying the numbers of cerCircuit Court, rejecting the claim of Mr. Buh-tain tickets, by books containing one hundred ring, was correct, and must, in all things, be*each, to the extent of 2,500, selected by [*77 "If this scheme is adopted, we engage to take 2,500 tickets each, in the second class of the P. and S. Navigation Lottery: Provided the ten-dollar prizes we now hold, and may hereafter receive, deducting 15 per cent., shall be taken in liquidation of our joint bond; and we engage to place in the hands of Mr. Carlton all the funds we receive for new tickets, until it amounts to a sum equal to that which we now owe the company, as fast as we receive them: on the balance we shall expect the usual credit. It is understood that the discount of 5 per cent. is to be made from the above 5,000 tickets; approved security to be given on the delivery of the tickets. "Joseph Milligan. "R. Gray." affirmed. Sentence affirmed with costs. 75*] *[Common Law.] THOMPSON v. GRAY. Where R. G. agreed with the managers of a lottery to take 2,500 tickets, giving approved security on the delivery of the tickets, which were specified in a schedule, and deposited in books of 100 tickets each, thirteen of which books were received and paid for by him, and the remaining twelve were superscribed by him, with his name, in his own handwriting, and indorsed by the agent of the managers, "Purchased and to be taken by Robert Grav," and on the envelope covering the whole, "Robert Gray, 12 books;' on the second day's drawing of the lottery, one of the last-designated tickets was drawn a prize of $20,000, and between the third and fourth day's drawing, R. G. tendered sufficient security, and demanded the last 1,200 tickets, and the managers refused to deliver the prize ticket; it was held that the property in the tickets changed when the selection was made and assented to, and that they remained in the possession of the vendors merely as collateral security, and that the vendee was entitled to recover the amount of the prize. (Signed) the plaintiff, and to be set apart for his use, had been delivered by him to the former agent of the lottery; that two of the books mentioned in the said schedule having been disposed of, or put out of the reach of the agent, another schedule was handed in by the plaintiff to the defendant, then, and at present, agent, in which two other books, containing the same number of tickets, were substituted in lieu of the two last-mentioned, the schedule, in respect to the others, being the same as the first. That the plaintiff had, at different times, received 13 books, of 100 tickets each, part of those specified in the schedule, and that he had paid for the 13 books, partly in certain promissory notes, received and approved of by the agent, and partly in cash, and had afterwards paid $108.80, on account of tickets in the 2d class, over and above the said 13 books. On the requisition of the plaintiff, the defendant produced on the trial a bundle containing twelve books of tickets of one hundred each (the residue of the numbers specified in the schedule), and, amongst others, the ticket in the declaration mentioned. on each of which books the name of the plain tiff was superscribed in his own handwriting; On the trial, evidence was offered to prove that the president and managers of the Potomac Company had been created a corporation, under *Similar proceedings took place as to [*78 that corporate name; that they had been au-W. Milligan, to whom only a part of the tickets thorized by law to raise the sum of $300,000 by selected by him had been delivered. 1. The That the drawing of the lottery was com- which refusal and several instructions the demenced on the 17th day of November, 1812, fendant excepted, and a verdict and judgment and that, on the 27th of that month, the second having been rendered for the plaintiff below, day's drawing, a prize of $20,000 was drawn the defendant in the Circuit Court brought the against the number in the declaration men-cause into this court by a writ of error. tioned. The plaintiff also offered evidence to Jones, for the plaintiff in error. prove that on the 4th day of December, 1812, ticket was at the risk of the vendors, and subsequent to the third and before the fourth drawing the prize is equivalent to any physical day's drawing, the plaintiff tendered to the de-change in the thing. It was not left in the fendant a bond for the payment of dollars, hands of the vendors as collateral security, for executed by himself and two sureties, who the pledge of the ticket would have thrown were fully sufficient for that sum, and de- upon the vendors the whole risk of the drawing manded from him the twelve books of tickets of these tickets, the essence of their value conwhich had been selected and set apart for him. sisting in the chance. On the contrary, the To which the defendant replied that he was thing was to remain in the vendors' possession, ready to deliver 1,200 of any undrawn tickets, and as their property, until a condition of the but would not deliver the high prize. The sale had been accomplished. 2. There is a redrawing of the lottery had been continued only pugnancy between refusing the first instruction fifteen days. and granting the second. The court below admit that the right of property was not complete in Gray, until the security stipulated; and that, when given, it would retroactively vest the property. The title was then clearly On which the counsel for the defendant below moved the court to instruct the jury. Swann, contra. The contract was consum "1st. That it is not competent for the jury to find, from the evidence so produced as aforesaid, that the twelve books of tickets including incomplete.1 the said prize ticket, had been, prior to the commencement of the drawing of the said lot-mated and binding on both parties. Gray's tery, appropriated by plaintiff and defendant to the satisfaction of said contract, and delivered to plaintiff under and in fulfillment of said contract, and deposited by the plaintiff with the defendant, as collateral security for the payment of the purchase money until other secur79] ity should be given, (as was contended and insisted upon by the plaintiff's counsel to the jury,") which instruction the court refused to give. proposition *was accepted; some of the [*81 tickets were actually delivered; there was a payment of what may be considered as earnest. The thing sold was specifically designated by the vendors. The vendee had the right of property and the right of possession. All he wanted was the actual possession. The thing sold may be designated in various ways. Property is transferred by the contract of sale without delivery, if the article is specifically designated.3 2d. That the facts so given in evidence by the plaintiff, as aforesaid, do not import an ab- Jones, in reply. There is a distinction besolute sale and delivery of the twelve books of tween this case and the authorities relied upon tickets, including the prize ticket, but a selec- by the other side. The question is, whether tion and setting apart of such tickets as were the contract be executory or executed. It was to be delivered to the plaintiff, when he should not executed by specifying the particular comply with his contract in giving the stipu- ticket; the security to be given by Gray was a lated security." Which instruction the court | condition which preserved the original execugave, but also directed the jury, "that such tory nature of the contract. Delivery, either selection and setting apart, aforesaid, was actual or symbolical, is essential to a sale; and sufficient delivery to the plaintiff to vest the neither took place here. The cases cited are of property of the said tickets in him upon his contracts self-executory, and where the parties giving or tendering approved security, accord-stipulated to waive delivery. ing to the terms of the contract, in a reasonable time thereafter; and that the tender of the security, as before stated, was in reasonable time." "3d. That the selection and laying apart of the twelve books of tickets, as aforesaid, and the said indorsements upon the said books, and upon the envelope of the same, did not vest in the plaintiff the property of said tickets, under the said contract, so as to entitle plaintiff to prizes drawn against those tickets before any security was given or offered, and whilst said tickets remained in the hands of defendant, awaiting the completion of said contract on the part of the plaintiff in respect to the stipulated security." Which instruction the court gave, but also instructed the jury, "that upon tendering the security, as before stated, if the jury should find such security to be sufficient, such 80*] selection and laying *apart of the said tickets did, under the said contract, entitle the plaintiff to all the prizes drawn by such tickets in the intermediate time between such selection and the tender of security, as aforesaid;" to Marshall, Ch. J., delivered the opinion of the court, and, after stating the facts, proceeded as follows: The question on which the correctness of the opinions given by the Circuit Court depends, is this: Was the purchase and sale of the twelve books not delivered so complete that the tickets had become the property and were at the risk of Robert Gray? *In pursuing this inquiry it becomes [*82 necessary to decide whether the clause respecting security forms a condition precedent, on which the sale is made to depend, or a condition subsequent, the performance of which may be suspended until it shall be convenient to the vendee, or required by the vendor. It is |