The London Packet.— Merino

Mr. Justice Livinoston delivered the opinion of the. Court. In the argument of this cause, the counsel have not confined themselves to the effect which the affidavit of the claimant ought of itself to have upon the decision of it, but have animadverted on all the testimony below. The Court, has, therefore, also extended its examination to all the proofs in the cause, and will now pronounce its judgment on them. The captured vessel was confessedly British property, as well as a great párt of its cargo, and its destination was to a port in the eriemy’s country, which raises a legal presumption, that the property claimed was not neutral; It is not denied, that a neutral may use the vessel of a belligerent, for the transportation of his goods, and whatever presumption may arise from the circumstance^ that it is riot of itself a causé of. condemnation. In this case, it does not appear^ nor was it probably the fact, that any neutral vessel *138 bound to London, was then .at Buenos Ayrés, and, therefore, this- presumption ought to have but little influence on the present decision. If the proprietary interest be satisfactorily made out, the claimant is entitled to restitution. There was no letter found on board from Merino to his correspondent in London, nor any invoice of this property. The only document relating to it was a bill of lading in Spanish, dated.the 19th of June, 1813, purporting that 6,276 hides had been shipped on board the London Packet, by Jeronimo Merino, on his account and risk, to be delivered to Antonio Dáubana, or in his absence to William Heiland, they paying the freight therein stipulated. This bill of lading was not signed by the master. To the omission of á signature to this bill of lading, much importance cannot be attached. It was found in possession of the master, and serving only as a memorandum for him of the cargo on board; and not being intended to pass into the hands of any other persons, it was a matter, of indifference whether he put his name to it, or not. Of seven bills of lading which Were found on board, no less than three were without his signature. Those which were delivered to the shippers, were, no doubt, signed, which was all that was necessary for their security. If this bill of lading be compared with the one produced, and proved by Daubana, it is impossible not to be struck with the exact similarity between them. They correspond in all respects, excepting only that one has not the -signature of the captain, and appears most manifestly to have been filled up with the same ink, and in the *139 same hand-writiñg, and at the same time; which is. no small proof of their being cotemporaneous acts, and of the authenticity of the one which is now produced by the consignee. But no letter from Merino to his correspondent, nor any invoice, nor any bill of lading for the consignee, being found on board, it is urged, that the proof of proprietary interest is defective, and that the sentence of condemnation ought, therefore, to be affirmed. Had no farther proof been introduced, relieving the case from this difficulty, the argument would be. entitled to great consideration. But the absence of those papers is now accounted for. It appears by the testimony of Stephenson, a passenger on board the London Packet, who was examined by the captors, that a large bag, containing a great number of private letters, and other papers, was sunk by order of the master of the London Packet, about half an hour before his vessel was taken. It is then but a fair presumption, that the letter, invoice, and bill of lading trans-" mitted by Merino to his correspondent in London, were among the papers thus destroyed. The loss of these papers being thus accounted for, and the master of the captured ship not being brought in as he ought to have been, there was a propriety under the peculiar circumstances-of this case, in affording', as the Court below did, an opportunity to the Spanish owner, of offering subsidiary proof respecting the property mentioned in the bill of lading found on board, and which was claimed by him. This farther proof, which consists of documents fFom the custom house at Buenos. Ayres, of the positive. testV *140 monjr of Mr. Daubana, the consignee in London, anfl °f the test-affidavit of^Mr. Merino himself, is satisfactory, that the proprietary interest of these hides was, at the time of shipment and of capture, in the claimant. That they belonged to Smith notwithstanding the mark of S. on some of them, as has been suggested, cannot be believed. On that supposition, his conduct is utterly inexplicable. If the adventure was on his account, the disguise of the shipment could have been intended for no other purpose than to impose, as to them, on the Courts of the United States; for this.contrivance or coyer could not protect his vessel from capture and condemnation. Yet, if we believe some of the witnesses, Smith declared, that the whole of the cargo belonged to himself, and some merchants in London. These declarations of Smith, as he was set at liberty by the captain of the Argus, and, of course, not examined on the standing interrogatories, ought not to militate against the integrity of the present claim ; but if they were really made, they afford strong evidence, that if. this bill of lading were designed as a cover for belligerent property, some other person, and not Smith, was to be benefitted by it. For if he were the real owner, why, it may be askéd, did he - voluntarily abandon the property, (for he was. put on board of another vessel, at his own request,) ay the very moment when this fraud, if he ever intended to avail himself of it, was to be consummated ?. Why did he not remain in his vessel until her arrival in the United States, and apply to a Spanish Consul, or spme other gentleman, to prefer a claim in favour of *141 the pretended Spanish owner ? Why did he not support this claim with' his own oath, as he must have intended to do ifjhe ever intended to derive any advantage from a contrivance which must have had its inception at Buenos Ayres, at his instigation, and for his emolument ? There is no accounting for his conduct on any ether hypothesis, than that he had no interest in- this property, and was, therefore, willing to leave it to its fate. The counsel for the captors, aware of the full and conclusive nature of the proof, so far as it establishes Merino’s interest in the merchandize claimed by him, have endeavoured to show that Merino was not. at Buenos Ayres when this shipment took place, and if he was, that it is impossible that his letter, which bears date the 10th of July, 1813, could have been put on board of the London Packet, which had sailed on the 24th of Jyne, fourteen days before. If this be so, a gross attempt has been made to impose on the Court, which ought to be followed with consequences fatal to the present claim. But the Court is not of opinion that either of these suppositions is supported by the evidence. Not a single witness whose testimony is relied on to establish the fact of Merino’s not being at Buenos Ayres at the time of the shipment, speaks with any certainty, or tells us affirmatively where he then was. This negative testimony, which, if it stood alone and uncontradicted, might excite a strong suspicion, is rendered of very little consequence, by much proof of a contrary character. The custom house document which has already been referred to, establishes the residence of *142 Merino at Buenos Ayres at the date of the shipment •, so does the affidavit of Merino himself, who is proved to be a gentleman of character, of property, and! respectability. Daubana also swears to the same fact, with as much certainty as one correspondent can establish the domicil of another residing at so great a distance from each other. He proves that Merino remained there until the loth of August following, at least, that he received a letter from him, dated at Buenos Ayres, on that day. Another witness, who saw him at Rio Janeiro in the year 1814, says, that he did not leave Buenos Ayres until after the middle of the year 1813. The weight of testimony, therefore, may be considered as in favour of the claimant being at Buenos Ayres when this shipment yva& made. Nor is it so certain, as seemed to be taken for granted at the bar, that the London Packet sailed on her voyage for Europe on the 24th of June, 1813. It is true, that the cook, and some others who were examined in preparatorio, fix the time. ~of her departure to that day ; but the second mate, and only officer of the captured vessel who was examined,, and who was most likely to know, says that she sailed in the month of July. Under this uncertainty respecting a fact which is deemed so material, and to which the claimant’s attention has never been called^ it cannot be expected that the Court should not only act upon it, as positively proved, but follow it up. with the condemnation of property só clearly proved to belong to a neutral. It would be more charitable" and not unreasonable, even if the fact were proved, to presume that witnesses were speaking of the time *143 of the London Packet’s first weighing anchor at Buenos Ayres, and that she may for some reason or other have been detained in the river until the 10th of July, which is the date of Merino’s first letter to his correspondent in London. It .may be added, that it is not easy tó believe, that if a fraud were intended, care would not have been taken to make the letter of advice, and all the other papers, correspond with the timé of the departure of the vessel. p*f|n claimant‘ Upon thevyhole, a majority of the judges are of opinion, that upon the farther proof the sentence of the Circuit Court should be reversed, and the property restored to the claimant. But as the captors have been put to great expense in consequence of the imperfect documents founds on board, and the great delay which has attended the production of the farther proof, they are of opinion that their costs and expenses must be paid by the claimant. .' Deciee reversed. Degree. — This cause came on to be heard on the. transcript of the record of the. Circuit Court of the United States for the District of Massachusetts, and the farther proof exhibited in this cause, and was argued by counsel. On consideration whereof, it is Decreed and Ordered, that the Decree of the Circuit Court for the District of Massachusetts in this .' * < v - case, condemning six thousand two hundred and seventy-six ox hides, as good and lawful prize to the libellants, be and the same is hereby reversed and annulled; And this Court, proceeding to pass such *144 Decree as the said Circuit Courtshould have passed, it.is further Decreed and Ordered, that the said six. thousand two hundred and seventy-six ox hides, be • “ . . J ' 7 restored to the claimant: And it is further Decreed, that the said Claimant pay to the Libellants the. eosts and expenses incurred in the prosecution of this suit.