THIS

BELVIDERE, MARSH.

July 6th, 1813, ́

chants for adthe vances made by

British mer

them for the uf●

HIS was an application on behalf of Meffrs. San- The claim of fom and Co., British merchants, to obtain poffeffion of an American fhip, which was feized in River Thames, under the embargo which preceded the declaration of hoftilities between Great Britain and Government the United States of America.

aud

was

of an American

fhip feized by the

upon the breaking out hetilaries

with that coun allowed upon the of the parties

try, canot be

mere aver:nent

themselves that

the fhip was put

into their han's

as

a fecurity for the debt to concafe is ftill more

tracted; and the

unfavourable if the money was advanced not for the immediate

veffel, but for the

It was stated in an affidavit made by one of the partners in the house of Sanfom and Co., that they had advanced confiderable fums to the American owners on account of this ship; and that it was put into their poffeffion as a fecurity for the repayment of the money advanced by their house of trade: That they fent the ship, under the protection of a licence, bearing date the 14th of August 1811, to the Baltic and back; that the amount of freight earned on the voyage placed to the credit of the fhip: That they obtained outfit of the another licence in February 1812, for a fimilar voyage, general mercanbut made no use of it; because it would have been tile tranfictions neceffary to have advanced money for the purchase of owners. a cargo, which they declined to do, in confequence of the non-arrival of fome remittances which they had expected from their American correspondents. It was ftated, likewise, in the affidavit, that by way of further fecurity, a power of attorney was executed on the 7th of March 1812, authorifing Sanfom and Co. to fell the ship, or to employ her in any way that they might deem moft eligible for their interest. A letter of attorney to this effect was annexed to the affidavit; and there was also exhibited an account-current between the parties refpecting the fhip; from which it appea ed

VOL. I.

A A

that

The BELVIDERE.

that the balance due to Meffrs. Sanfom and Co. from the American owners, on the 31st of December 1812, July 6th, 1813. amounted to 1,724. 4s. 9d. The affidavit also

ftated, that the American houfe of trade were further indebted to Meffrs. Sanfom and Co. in the fum of £3,257. 175. for which they had no fecurity what

ever.

For the Crown, the King's Advocate and Adams contended, That the Court was not at liberty in prize proceedings to attend to collateral claims; and that the legal title being in the American owners, the ship muft neceffarily by condemned as enemy's property.. That nothing but an order* from the Crown, directing the re-payment of the advances made by the British merchants, could justify the Court in pronouncing for the claim which had been made on their behalf. That Meffrs. Sanfom and Co. had no lien on this fhip, at leaft nothing that could be fo confidered, according to the law of England. That the power of attorney, which had been produced, did not contain any affignment of the ship to them by way of security for the

*On the breaking out of hoftilities with Denmark, in the year 1807, an order in council, of which the following is an extract, was iffued: "And it is hereby further ordered, that in cafe any "advances fhall have been made before the late embargo, viz. the "fecond of September laft, by any British fubject upon the credit

and fecurity of any fhip, freight, or goods belonging to "Danish fubje&ts, which may be condemned as prize to His Ma"jefty, the amount of fuch advances so actually made (but with"out farther compenfation) fhall be paid to the faid British fubjects, out of the proceeds of the property fo condemned, upon the credit of which the advances were respectively made, "upon due proof thereof to the fatisfaction of the High Court "of Admiralty, &c.",

66

debt,

The BELVIDERE.

debt, but merely authorized them to fell the veffel, or to employ her till a fale fhould be effected. That the Court, by decreeing poffeffion of this fhip to Meffrs. July 6th, 1813. Sanfom and Co. would in effect decree that the Crown should pay the debts of its enemies, fince the debt of the American owners to the British merchants would, by the delivery of the ship into their poffeffion, be pro tanto extinguished. That part of the money had been advanced by Meffrs. Sanfom and Co. fince the embargo was imposed, and for this they could have nothing in the nature of a lien on the hip. That the parties having failed in establishing either a legal or equitable title to the fhip, their prayer muft be rejected.

For the Claimants it was contended, That although the Crown is under no obligation to allow claims which are latent only, and which cannot be enforced without the aid of a court of juftice; yet it is bound to respect the claims of its fubjects upon property placed in their hands as a fecurity for money advanced by them. That fimilar claims had been allowed by the Crown on former occafions. Tobago, De Wit, 5 Rob. 218. Conftantia, Harlessen, (Edwards's Rep. 232.) Vrow Sarah, Claffina.*

JUDGMENT.

This was the cafe of a Dutch fhip, which failed in July 1802, on a voyage from the Texel to Surinam, but put into Cowes in diftress, in confequence of damage she had sustained at fea. On his arrival at Cowes, the mafter applied for affistance to Meffrs. Day, of that place, who, after a regular furvey, caufed the cargo to be unlivered and warehoused, and put the vessel into the hands of Meflrs. Sieur and Mitchell, with directions to them to make the neceffary repairs, which they accordingly did. After the repairs had been completed, the fhip and cargo were feized, under the embargo (15 May 1803), which preceded the declaration of hof

The BELVIDERE.

JUDGMENT.

Sir W. Scott.-This is the cafe of an American veffel, July 6th, 1813. which has been feized in the London Dock, and is liable to condemnation as the property of an enemy to the Crown of this country. No regular claim has been given for the fhip; but an application is made to the Court by merchants in this town (Meffrs. Sanfom and Co.) to have the ship re-delivered to them, stating that it had been placed in their hands as a security for money advanced by them on account of this very fhip. Cafes have been stated in which the Court has certainly attended to claims fomewhat fimilar; but in all those cafes the parties had fome certain evidence of their right: They had either a positive lien upon the ship, or were in poffeffion of a bottomree-bond, or fome specific fecurity. In this cafe, nothing of the kind is made out by the claimants; and this does, I think, materially diftinguish it from thofe cafes which have been mentioned. Here is nothing but an affidavit of the claimants themselves, ftating that they have, at various times, advanced money for the ufes of this ship, and that the American owners had put them in poffeffion of it as a fecurity for the debt fo contracted. No bottomree-bond or any inftrument of any kind is produced in fupport of the claim, which is left to reft upon the mere averment of the parties interested. The

tilities against the Batavian republic, and were proceeded against as droits of Admiralty. A claim was given by Meffrs. Sieur and Mitchell, for the amount of the repairs done by them, and alfo on behalf of Meffrs. Day, for the money they had advanced for the unlivering and warehoufing the cargo, and other incidental ex pences. The Court pronounced in favour of the claims, refer ring it to the registrar and merchants to afcertain the fums actually due to the claimants.

perfons

The BELVIDERE.

persons who have made this affidavit are certainly of the highest respectability in the clafs of perfons to which they belong; but the Court cannot take a fa&t July 6th, 1813. of this fort upon the bare averment of any perfons, however refpectable, or fuffer itself to make perfonal distinctions in matters of this kind. It expects to be furnished with fomething more substantial than the mere affidavit of the parties themselves. Nothing more is offered in the present cafe; and this defect is, I think, fatal to the claim.

What Mr. Sanfom fwears is this: That the veffel was put into the poffeffion of the house of trade to which he belongs, as a fecurity for money advanced by them; but this statement is wholly unfupported by documentary evidence, and refts on the affertion of Mr. Sanfom himself. What fort of poffeffion of the ship was given to this gentleman? According to his own statement, it was entrusted to him partly for the fale of the ship, and partly for its employment in trade. But that any inftrument to this effect was executed, or that there was any correfpondence by letter relative to this business, does not at all appear. Thus far the matter refts upon mere verbal agreement, between the parties, -if indeed there was any thing that can be treated as an actual agreement upon the subject. Then (at a very late date) comes a general power of attorney; fuch as might be very well granted to any other agent, who had no claims whatever on the fhip. The accounts too are made out in the way in which any other agent must be fuppofed to make out his accounts; for the profits earned by this fhip in the way of freight are placed to the account of the principal in America. There is fo manifeft a deficiency in the evidence, that it is impoffible for the Court to sustain the demand.