THE MARY, 13 U. S. 126 (1815)

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U.S. Supreme Court

The Mary, 13 U.S. 9 Cranch 126 126 (1815)

The Mary

13 U.S. (9 Cranch) 126


The condemnation of a vessel as enemy's property for want of a claim cannot prejudice the claim for her cargo, but it is still competent for the claimant of the cargo to controvert the fact that the vessel was enemy's property so far as that fact could prejudice his claim.

One claimant cannot be injured by the contumacy of another.

The holder of a bottomry bond cannot claim in a court of prize. An American vessel sailing from England in August, 1812, in consequence of the repeal of the British orders in council, and compelled by dangers of the seas to put into Ireland, where she was necessarily detained until April, 1813, when she sailed again for the United States under the protection of a British license, being captured on the voyage by an American privateer, was protected by the President's instructions of 28 August, 1812. The continuity of the voyage was not broken.

If a cargo be innocently put on board in an enemy's country, if at that time the importation be lawful, it cannot be rendered unlawful by a detention occasioned in the course of the voyage either by the perils of the sea or the act of the enemy unless this effect be produced by some positive act of the legislature.

A judgment against one defendant for the want of a plea, or a decree against one defendant for want of an answer, does not prevent any other defendant from contesting, as far as respects himself, the facts admitted by the absent party.

The decisions of a court of exclusive jurisdiction are necessarily conclusive on all other courts, because the subject matter is not examinable in them, but in the same court they are no further conclusive than judgments and decrees of courts of common law and equity; they bind the subject matter as between parties and privies.

The reason of the doctrine that the whole world are parties in an admiralty cause, and therefore bound by the decision, determines its extent. Every person may make himself a party and appeal from the sentence, but notice of the controversy is necessary in order to become a party, and before the rights of an individual are bound by a judicial sentence, he must have notice, either actual or implied, of the proceedings. When those proceedings are against the person, notice is served personally, or by publication; when they are in rem, notice is served upon the thing itself. This is necessarily notice to all those who have any interest in the thing, and it is reasonable, because it is necessary and because it is the part of common prudence for all who have an interest, to guard it by persons in a situation to protect it.

But those who have no interest in the vessel which could be asserted in a court of admiralty, have no notice of the seizure, and can on no principles of justice or reason be considered as parties in the cause.

Appeal from the sentence of the Circuit Court for the District of Rhode Island condemning the cargo of the Mary as prize to the privateer Paul Jones.

This cause was argued at last term, when leave was given by this Court for further proof by affidavits on the following points.

1. As to the citizenship of N. J. Visscher.

2. As to the names of the other heirs of General Fisher, who are interested in the property, the place of their residence, and their national character.

3. As to the time when N. J. Visscher went to England, the object he had in view in going thither, how long he resided there, when the cargo was purchased, and when he returned to the United States.

4. As to the instructions which the Paul Jones had on board at the time of the capture of the Mary, and particularly whether the President's instruction of 28 August, 1812, had been delivered to the captain or had come to his knowledge at the time of the capture, or whether the Paul Jones had been in port after 28 August, 1812, and before the capture.

The captors also had leave to make further proof as to the same points.

The further proof now offered consisted of the affidavits of the claimant, N. J. Visscher, Jacob S. Pruyn, and David Gelston, Collector of the Customs for the port of New York. The affidavit of N. J. Visscher stated in substance that he and sundry other persons (whose names and places of residence are mentioned, and who are all citizens and residents of the United States) are chanrobles.com-red

Page 13 U. S. 127

the sole heirs at law and personal representatives of the late general Garret Fisher. who died in London intestate. That he, in behalf of himself and as agent for the other heirs, went to England (having first obtained leave from the War Department, he being a military officer in the service of the United States) in consequence of an agreement between him and the other heirs dated June 19, 1811 (which original agreement is annexed to the affidavit). He arrived in England on 22 August, 1811, and obtained letters of administration on the estate of General Fisher, collected the effects, converted them into cash, paid the debts, and was prepared to remit the balance to the United States long before the war was known in England, and was waiting for a favorable opportunity of investing the same in property that could be advantageously sent to the United States, the balance of exchange being then greatly against him, and not being able to invest the whole in United States stock. That as soon as the revocation of the English orders in council took place, supposing that it would be followed by the repeal of the nonimportation law of the United States, he gave orders for the purchase of British goods to nearly the whole amount of the balance remaining in his hands, which purchase, including the goods now in question, was made by Harman Visger, his agent, before the war was known in England, who caused them to be sent to Bristol to be shipped, where they arrived in July and August, whence they were shipped early in August on board the American brig Mary. That the goods were the sole property of the claimant, for himself and the other heirs of General Fisher. That he left England as soon as his business was settled, and arrived in the United States on 19 October, 1812.

The affidavit of Mr. Pruyn confirms that of Mr. Visscher as to the residence and citizenship of the claimant and the others interested in the cargo.

The affidavit of Mr. Gelston states the fact that a copy of the President's instruction of 28 August, 1812, was given to the commander of the Paul Jones before she sailed on the cruise in which she captured the Mary.

No further proof was offered on the part of the Captors. chanrobles.com-red

Page 13 U. S. 139


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