THE MARY AND SUSAN, 14 U. S. 25 (1816)

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U.S. Supreme Court

The Mary and Susan, 14 U.S. 1 Wheat. 25 25 (1816)

The Mary and Susan

14 U.S. (1 Wheat.) 25


Goods were shipped in the enemy's country in pursuance of orders from this country received before the declaration of the late war but previous to the execution of the orders, the shippers became embarrassed, and assigned the goods to certain bankers in the enemy's country to secure advances made by them with a request to the consignees to remit the amount to the bankers, and they (the bankers) also repeated the same request, the invoice being for account and risk of the consignees in this country, but stating the goods to be then the property of the bankers. Held that the goods having been purchased and shipped in pursuance of orders from the consignees, the property was originally vested in them, and was not divested by the intermediate assignment, which was merely intended to transfer the right to the debt due from the consignees.

The goods in question were part of the cargo of the ship Mary and Susan, a merchant vessel of the United States which was captured on 3 September, 1812, by the Tickler, a private armed vessel of the United States. The cargo was libeled as prize of war, this portion claimed by Messrs. G. & H. Van Wagenen, and condemned in the district court. In the circuit court this sentence was reversed and restitution to the claimants was ordered, from which decree the captors appealed to this Court. The cause having been heard in both the courts below on the documentary evidence found on board, the original order for the goods does not appear. That they were shipped in consequence of chanrobles.com-red

Page 14 U. S. 26

orders is, however, sufficiently proved by the letters addressed to the claimants and the other papers which accompanied them. These are 1., an invoice headed in the words following:

"Birmingham, 8 July, 1812 -- Say 15 March, 1811"

"Invoice of fourteen casks and four baskets of hardware, bought by Daniel Cross & Co. by order, and for account and risk, of G. & H. Van Wagenen, Merchants, New York, marked and numbered as per margin, and forwarded on 4 March, 1811, to care of Martin Hope & Thornley, Liverpool, and by them afterwards transferred to the care of T. & W. Earle & Co. of Liverpool, which goods are now the property of Messrs. Spooner, Attwood & Co., Bankers, of Birmingham, to whom you will please to remit the amount of this invoice."

And containing at the foot, after the enumeration of the articles and their prices in the usual form, the following charges:

[See printed 14 U.S. at p. 25 for charges] chanrobles.com-red

Page 14 U. S. 27

2. A bill of lading in the usual form, stating that the goods were shipped by Thomas and William Earle & Co. of Liverpool, to be delivered to the claimants, or to their assigns, in New York.

3. The two following letters:

"Birmingham, 8 July, 1812"

"Messrs. G. & H. VAN WAGENEN."


"In consequence of the revocation of the British Orders in Council on the first day of August next, we have lost no time in shipping the goods sent to Liverpool so long since, agreeable to your kind order. They are in the Mary and Susan, a most beautiful new vessel, to sail in all this week; the freights are very high, 70s. for measurement to New York, and 80s. to Philadelphia, and at this moment nothing less will be taken. We therefore thought you would prefer to have the goods at this rate, rather than wait for a reduction in the freight, which we doubt not will soon take place. By the letter of our friends, Messrs. Spooner, Attwood & Co., herewith, you will perceive the interruption to commerce has been an inconvenience to us as young merchants, but the unneighborly conduct of the old house will only serve to prompt us to new exertion for our friends in the states, for whose interest nothing shall be omitted within our power. We shall certainly serve them as well, if not on better terms, than heretofore. We will not be undersold. In a few days we shall send Mr. Oakley, for the use of our friends, a new and complete set of patterns, which, we trust, will meet with their approbation. Mr. O. and Messrs. B. W. Rogers & Co. will be able to give you more particulars respecting what has passed on this side. The amount of invoice herewith to your debt is 820 2s. 1d., which, agreeable to the letter of Messrs. Spooner, Attwood & Co. you will please to remit to them on arrival of the goods,

Page 14 U. S. 28

but hereafter things will move in the usual channel. Waiting your further favors,"

"We remain, Gentlemen, your most obedient servants,"


"Birmingham, 9 July, 1812"

"Messrs. G. & H. VAN WAGENEN, Merchants, New York"


"In consequence of the late unfortunate state of affairs between this country and the United States of America, great inconvenience and distress have naturally been experienced by the merchants and manufacturers here. Among others, our friends Messrs. Daniel Cross & Co. have been considerably embarrassed, and have received great relief and assistance from our house. We were induced to extend this assistance as bankers from motives of friendship and regard and under the hope that the unnatural state of affairs between the two countries could not possibly last long, but as it was necessary that our assistance should be very considerable, we thought it right to obtain from them an assignment of certain quantities of goods which they had provided on account of your house and of several others in the United States previous to 2 February, 1811. We are thus introduced to your acquaintance, and we beg leave to send you herewith an invoice of the goods which Messrs. Daniel Cross & Co. had purchased for your account and which are now forwarded to you, requesting that you will remit the amount, 820 2s. 2d. to us at your earliest convenience. We cannot conclude this letter without expressing our satisfaction at the services we have had the opportunity of rendering to Messrs. Daniel Cross & Co., whom we consider to be persons of the greatest integrity and knowledge of business, and without earnestly recommending them to your future attention. We are convinced that their late difficulties will not at all affect their future proceedings, and that they will henceforth be enabled to carry on their business in the same regular and punctual way as they have formerly done, and we cannot but flatter ourselves that as the orders in council are now revoked, and the British government has become alive to the true interest of the British people, the natural relations between the two countries will long continue, and that the connection between your respectable house and Messrs. Daniel Cross & Co. will be productive of permanent and mutual advantages. With best wishes for your prosperity and happiness, and that of your country,"

"We are, respectfully, Gentlemen, your obedient humble servants,"

"SPOONER, ATTWOOD & Co. Bankers, Birmingham"

"Messrs. G. & H. VAN WAGENEN, Merchants, New York "

Page 14 U. S. 35


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