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![handle is hein.slavery/ssactsengr0390 and id is 1 raw text is: THE AURORA
[218] TH, AURORA -(Lindberg, Master). March 16, 1802.-Proprietary interest,
still residing with enemy-shipper, under the circumstances. Condemnation.
This was a case respecting the legal proprietary interest in cbrtain goods, shipped
in a Spanish port, and sent to Ireland. The principal facts were stated to be, that
Neale, a merchant, living in America, having been engaged in exporting barilla from
Teneriffe to Ireland, and having funds in Teneriffe, was considerably in debt to
Cunningham, his correspondent living in Belfast ; that Cunningham, wishing to get
the debt liquidated, sent over his clerk to Cullen and -, merchants, at Teneriffe,
to persuade them to ship a further certain quantity of barilla consigned to him, but
on the account of Neale, as they had formerly done, on a promise, that he would be
responsible for the remainder of the shipment; a licence was obtained for such
importation, and a vessel chartered and sent out to bring the goods to Ireland.
The clerk arrived, and the transaction went on according to Cunningham's directions;
the shipment was made, and the bill of lading signed to Neale, when the shippers
received advice from London of the real nature of the order, that it was not in the
common course of a consignment to Cunningham for Neale's use ; but that Cunning-
ham had taken this method to indemnify himself, by getting the property of Neale
into his hands. On this discovery, the shippers, who had made out a bill of lading
to Neale, interposed, and refused to let the ship sail, unless Jameson, the clerk of
Cunningham, would consent to an alteration of the bills of lading, and take them
to the order [219] of the shippers ; the bills of lading were accordingly made
out in that form, ind the ship sailed and was captured.
In support of the claim, Laurence and Sewell contended,-that the ship having
been chartered by Cunningham, and sent out on this expedition, a delivery to the
master was a delivery to him.
Court.-Was there not a case very lately of goods sent by a merchant in Holland
to A. a person in America, by order of B. and for account of B. but with directions to
A. not to deliver them, unless satisfaction could be given for the payment,-in which
case the property was held, not to be divested out of the Dutch shipper, and
condemned ?
Laurence.-Such a case has occurred, but there the goods were not going to the
hands of the purchaser, but to a third person who might be supposed to keep up
the possession of the shipper, as an intermediate agent : here they are going directly
to the consignee, and into his possession.
Judgment-Sir W. Scott: This is the case of goods shipped in Teneriffe, and bound
to Belfast, there to be imported, it is said, under a licence, though all that is produced
is not a licence, but an order of the Lord Lieutenant to the Custom-house, reciting,
that there was such a licence. It is proper, in all cases, that the licence itself
should be exhibited, in order that the Court may see whether the party has com-
[220]-plied with the terms of it. (a) One limitation of the licence I can infer from
what is here stated, viz. that the articles were to be either British or Irish property ;
if they should prove not to be the property of a British or Irish merchant, it would be
impossible that they could be restored under this licence. A second condition is,
that they were to be imported by Mr. Cunningham. If the Court should be of
of the Court below, holding, that the original captor had not completed his possession ;
that the incipient interest which had been acquired by the first taker was entirely
divested by the subsequent rescue, and that the final British captor was to be con-
sidered as the efficient captor, and as such entitled to the whole benefit of the prize.
In the case of The Margueritte (3d April 1781), the same question was brought
before the Court of Appeal, with the only difference, that the first recapture had been
made by a French frigate. The Lords pronounced a decree to the same effect, and
condemned the appellant in costs. Mr. Valin, Traiti des Prises, c. 6, § 1, says, that
this point was established in the French Court of Prize in favour of the ultimate
captor, by an arret, A.D. 1748.
(a) The concluding clause of licences provides, That any person who shall
claim the benefit of the licence hereby granted, shall take and have the same, upon
condition, that if any question arises in any of our Courts of Admiralty, or elsewhere,
whether such person or persons hath or have, in all points conformed thereto ; in
all cases whatsoever, proof shall be on the person or persons using this our licence,
or claiming the benefit thereof.
4 0. ROB. 218.](ViewImageLocal?handle=hein.slavery/ssactsengr0390&div=1&collection=&method=preview&ext=.png&size=3)