The Mary and Susan .—G. & H. Van Wagenen

*35 Marshall, Ch. J., delivered the opinion of the court, and, after reciting the documentary evidence, proceeded as follows: Upon these papers it is contended by the captors, that the goods remained the property of Daniel Cross & Co. until the transfer to Spooner, Attwood & Co., when they became the property of the assignees; that this change of property so operates upon tha subsequent shipment as to make it a shipment without order, and to leave it in the election of G. & H. Van Wagenen, to accept or reject the goods; and that this right of election is terminated by the intervening right of the captors. On the part of the claimants it is contended, that their right commenced with the purchase, which was made by their order, and for their account and risk, and was completed when the goods were forwarded to Liverpool: that if this point be determined against them, still the whole transaction evidences an. intention to assign the claim of Daniel Cross & Co. to Spooner, Attweod & Co., so as to give them a right to receive the money, but not in any manner to affect the interests of G. & H. Van Wagenen. Whether Messrs. G. & H. Van Wagenen became the owners of the goods on their being sent from Birmingham to Liverpool, must depend on the orders under which Daniel Cross & Co. acted. If their authority was general to ship to G. &EL Van Wagenen, the goods might, according to the circumstances of the purchase, remain the property of Daniel Cross & Co. until they were delivered to the master of the vessel for the purpose of transporta. *36 tion. if they were directed to purchase the goods,- and to store them in Liverpool as the goods of G. & H. Van Wagenen, to be afterwards shipped to the United States, it appears to the court that the property changed on being sent to Liverpool, and immediately vested in the American merchants for whom they were purchased. The testimony respecting the orders is found in the letter from Daniel Cross & Co. to G. & H. Van Wagénen. The words of that letter which bear particularly on this point are, 44 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, agreeably to your kind or; der.” This language is not equivocal. It imports, in terms not to, be misunderstood, that the goods were sent from Birmingham to Liverpool, in consequence, of the orders of Messrs-. G. & H. Van Wagenen. Thie-Ietter is addressed to the house which had give» the order, and was written without an existing motive for misrepresenting that order. There is certainly nothing in the circumstances of the transaction which would render it probable that the order must be represented in this letter, either carelessly or intentionally, in any manner different from that which was really given. The situation of this country during what'has- been termed our restrictive system was notoriously such as to render it an object with every importing merchant to use the utmost despatch in bringing in his goods so soon as they should be legally admissible-. Nothing, therefore, can be more probable than that orders for making purchases *37 which were to be executed at an inland place, by a house residing at such place, would be accompanied with orders directing them to be conveyed to a seaport, there to be held in' perfect readiness for exportation. In the usual course of trade, if the purchasing and shipping merchant be the same, there would rarely be any actüál change of property between the purchase and the shipment of the articles, nor could we expect to find any extrinsic evidence of ownership, other than the meré possession $ but in the state of trade which existed at the tipie of this transaction, siich change, and the evidence of it, may be reasonably expected. In the common state of things, the whole order respecting purchase and shipment, where the same agent is employed', is executed with expedition, and is, in appearance, one transaction. In the actual state of things, the purchase was to be made immediately, but the.shipment was to take place at some future indefinite period. It would depend on an event which might be very near or very remote. It became a divided transaction, or, rather, two distinct operations. We look for some intervening evidence of ownership in the person for whoin the purchase was made,and are not surprised at finding it. If, in such a state of things, the goods were procured ‘under a general order to purchase, but no‘t to ship until some future uncertain, event should occur, and were, in the mean time, to remain the property, and at the risk of the agent, they would probably be retained at the place of purchase under his immediate control apd inspection. Their convey-nee to a seaport, there to be stored until their im« *38 porteition into the United States should be allowed, was such a fact as would scarcely have taken place . . J r without special orders, in the course of whiqh an actual investment of the property in the person by whose order, and for whose use, the goods were purchased and stored at a seaport, is hot unreasonably to be expected. The court considers this letter, then, as proving incontestibly that the goods were conveyed to Liverpool, and there stored, to be shipped on the happening of some future event which it was supposed would restore the commercial intercourse between the two countries, in pursuance of specific orders from the claimants; and is further of opinion, that the transaction itself furnishes strong intrinsic evidence that the goods, when stored in Liverpool, were the goods of the claimants, subject to that control oyer them, which Daniel Cross & Co. would have as the purchasers, and intended shippers, who had advanced the money with which they were purchased. However this, control and lien might be used for th,eir own. security, it could not be wantonly used to; the destruction -of the property, of G. & H. Van Wagenen, and any conveyance to a person having notice of their rights ought to operate, and be considered as intended to operate, consistently with them, so far as the two rights could consist with each other. The words, then, in the invoice, which represent. the goods as the property of Spooner, Attwood & Co., are introduced with no other object than to secure the payment of the purchase money to them. The invoice made out by Spooner, Attwood & Có. themselves, states the merchandise it specifies to have *39 been purchased by Daniel Cross & Co., by order, and on account and risk of Messrs. G. & H. Van Wager nen, and to have been forwarded to Liverpool more than 12 months anterior to the date of the shipment. Goods tipis purchased, and thus conveyed to a sear port, and stored under the orders of the American merchant, may well be considered as-leaving in the purchasing agent only the lien which a factor ham to secure the payment of the móney which is due to. him. If this was the true state of the property at the time of the assignment to Spooner, Attwood & Co,, they having full notice that the ássignment could only operate as an order for G. & H. Van Wagenen to pay the money to them, (Spooner, Attwood . & Co.) and wojuld, probably, in its form and expreg? eions, manifest this. idea. The court is much inclined to the opinion, that these goods became the property of the claimants on being stored in Liverpool, if not at an antecedent time. The question, however, would, undoubtedly, be affected by the order under which Daniel Cross & Co, acted; by the deed of. assignment to Spooner, Attwood & Co.; and by other papers which are attainable. If, therefore, the case depended entirely upon this point, farther proof might be required. But, in the opinion of the majority , of the court, the case does not depend on this point alone. If the goods were shipped in. pursuance of the orders given by G. & H. Van Wagenen,'the delivery on board the ship was a delivery to them; the property was vested in them by that act, and they had no election to accept or reject ifc. *40 In pursuing, this inquiry, the legal , effect of the transaction must depend, in a. considerable degree, on the intent of the parties, and that intent is, in this case, to be collected chiefly from their letters, and from the circumstances in which they stood. G. & H. Van Wagenen were American merchants desirous of receiving the goods they had ordered as soon a : the importation of those goods should be allowed. Daniel Cross & Co. were commission merchants of Birmingham, engaged in the American business. Spooner, Attwood & Co. were bankers, frieíidly to Daniel Cross & Co.; were desirous of promoting their interests, and recommending them to business, and had advanced them money while embarrassed by the difficulties consequent on the state of trade between the United States and Great Biitain. Spooner, Attwood & Co. were desirous, not of purchasing the goods stored at Liverpool by Cross & Co. for the claimants; not of interrupting the shipment of those goods, or the connexion between Daniel Cross i& Co. and G. & H. Van Wagenen; but of permitting the shipment, to proceed, and of receiving, themselves, the money to which Cross & Co. were entitled. Such was the situation, and such the objects óf all the parties: keeping this situation and these objects in view, let the testimony be examined. The letter of Daniel Cross & Co., dated the 8th of July, 1812, is in the language of «men who were themselves the ship'pers of the goods. , “ We . have lost no time,” they say, in shipping the goods, sent to Liverpool so long since, agreeably to your kind ' order.” They speak of the vessel and of the freight, *41 as if the vessel were selected, and the contract made, by themselves. “We thought you would prefer to have the goods at this rate, rather than wait for a induction in the freight.” They next refer to the letter- of their friends, Spooner, Attwood & Co., to show the inconvenience they had sustain-. ed as young merchants, but without any indication of atl interference of that house in the shipment, and conclude with saying, “ the amount of Invoice, herewith, to yotir debit, is. 820/. 2s. Id., which, agreeably to the letter of Spooner, Attwood & Co., you will please to remit to them on arrival of the goods.” This is the letter of an agent who hás executed, completely, the order which had been given him; but who, having been compelled to borrow money, Jiad transferred his pecuniary claims to his creditor. The letter of Spooner, Attwood & Co. will next be considered. It is dated the day after that written by Daniel Cross 4s Co. After stating their friendship for Daniel Cross & Co;,- and the aid afforded that house, they add : “ 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 the 2d of February, 1811. We are thus introduced to your acquaintance, and we beg leave to send you herewith an invoice of the goods' Daniel Cx;oss & Co. had purchased for your acCbunt, and which we now forward to you, requesting that you will remit the amount of 820/. 2s. Id. tb us at your earliest con *42 venience.” Nothing is said in this letter respecting ^le vesse^ by which the goods- were sent; nothing indicating the exercise of any judgment by Spooner, Attwood & Co,, respecting the time or manner of sending them; nor any thing which would lead to the opinion that they interfered, in any manner whatever, in the transaction of the business. On comparing the two letters, the inference is inevitable, that Daniel Cross & Co. continued to execute the order of G. & H. Van Wagénen, in like manner as if their affairs had never been embarrassed.' The contents of the two letters, in conformity With the situation and views of .the parties, prove, that Daniel Cross & Co. had only transferred to Spooner, Attwood & Co. their right to receive payment for the . goods, and that the arrangements between them were intended only to secure that object. The assignment of the goods mentioned in the letter of Spooner; Attwood & Co. does not appear from the context, and from the nature’ of the transaction, to , he intended to convey the idea of a sale, but to be used in rather a different sense, as an assignment of the -adventure, or of the right to the debt due from G. & H. Van Wagenen. Whatever may have been the form of this assighment, it is apparent that it could not have been made, and certainly was not made, with the intention ‘ of enabling Spooner, Attwood & Co. to defeat the shipment to G. & H. Van Wagenen, or to control the proceedings of Daniel Cross & Co., under the order they had received. Why, then, are the goods, when put on board the Mary and Susan, in pursuance of the orders of the claim *43 ants, to be considered not their property, but as the property of Spooner, Attwóod & Co. ? It is said that they were shipped by Spooner, Attwood & Cp., hot by Daniel Crosg & Co.; that the confidence implied in the order for purchase and shipment was personal, and could not be transferred or executed by another. Allow to this argument all the weight which is claimed for it. by the. counsel for the captors ; what part’ of this personal trust was transferred '?■ What part of tHe order was executed by any other than Daniel Cross & Co. ? The goods were purchased, sent to Liverpool, stored, and, afterwards, shipped by them. Every other auxiliary part of the transaction was performed by them. Nothing appears to have been done in pursuance of orders from Spooner, Attwood & Co., but every thing in pursuance of their own judgment, acting under the order received from G. & H. Van Wagenen. On this .ground the claimants could, raise no objections to the conduct.of Daniel Cross •&. Co. But if is said, that Daniel Cross & Co. might have had the funds of G. & H. Van Wagenen in their hands, in which, case the claimants would have been compelled, by receiving the goods,: to pay their amount tó Spooner, Attwood &' Co.; consequently, this- assignment inúst be considered as creating in Spooner, Attwood & Co. new rights, which l’eleased G. & H. Van Wagenen from the obligation to receive the cargo. But Daniel Cross .& Co. did .not purchase with the funds of the claimants. They purchased with their own funds. They inflicted,-therefore, no injury on the claimants by transferring their right to the ftto *44 ney ,to Spooner, Attwood & Co. The effect of the transaction is precisely the same as .if they, had drawn a bill in favour of Spooner, Attwood & Co. for the amount of the invoice. It is said that the assignment gave Spooner, Attwood & Co. an election to ship the goods, or to dispose of them otherwise, and that the. necessary consequence of this power of election, is a correspondent right of election in G. & H. Van Wagenen to receive or reject them.. The court does not view the transaction in this light. The assignment to Spooner, Attwood & Co. is understood by. the court, from the evidence furnished by the letters, and the circumstances and objects of the parties, to have been subject to the right of Daniel Cross & Co. to execute, completely, the order of the claimants. The interests of all parties were best promoted by pursuing this course, and they appear to have pursued it. The court perceives nothing which can justify the opinion that Spooner, Attwood &Co. had a right, or would have been permitted, to intercept the shipment. Certaihly it was neither their wish nor. their interest to interrupt it. It is not reasonable, therefore, to suppose, that they would, have created .any difficulty in obtaining, a right to claim the amount of the invoice from G. & H. Van Wagenen, by insisting on such an assignment as Daniel Cross & Co. would have been Unwilling to make, because it might have proved in-' jurious to them, without benefiting the house they meant to secure. It has also been argued, that the orders most probably directed a shipment of the goods when the non-intercourse should be removed, *45 and that a shipment before that time was without orders, and at thq. risk of the shipper. The court does not think this probable. It is well known that- the continuance of the laws of non-intercoursé was considered, as depending on the continuance of. the orders in council. It is-, also, perfectly clear, that the Alrie- ■ bican merchant, who should permit his goods- to remain in Great Britain until intelligence of. the repeal of the non-intercourse laws could be conveyed from this, country to that, would be anticipated by all others, and would' bring them to a market already , supplied. Nothing, therefore, would be more reasonable than to' order them to be shipped on,the revocation of the orders in council. This idea is supported by the letter of Daniel Cross & Co. That letter, indicates no doubt of the propriety of the shipment. Upon a view of the whole case, the majority of the court is of opinión, that. this is not a case in which farther proof ought to be required,; and that the goods by the Mary and Susan were shipped in pursuance of the orders, of the claimants,, and became their property when delivered, for their use, to the master of the vessel, if not at an earlier period. Sentence of the circuit court affirmed with costs.