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THE FRANCES

February 18, 1815

THE FRANCES, BOYER, MASTER, (DUNHAM AND RANDOLPH'S CLAIM.)


Absent. TODD, J.

IN this case further proof was ordered at the last term. (See

Ante vol. 8, p. 354.)

PINKNEY, for the Claimants.

The property vested in Dunham and Randolph by the shipment.

It was made in consequence of, although not strictly in conformity

with, their orders; and delivery to the master of the vessel was

tantamount to a delivery to themselves. The invoices and bills of

lading all stated the goods to be shipped on their account and

risk.

But if the property did not pass by the shipment, there is no

reason why it should not pass in transitu, so that it be before

capture. It is true that it cannot vest in transitu so as to

defeat a vested belligerent right. But if the transfer take place,

according to the original terms of the contract, before a

belligent right has accrued, it is not within the principle nor

the spirit of the rule. If the further proof shows that the

property had absolutely vested in Dunham and Randolph before the

capture, it must be restored.

The further proof shows that the invoice, stating the

shipment to be made for their account and risk, was

[184]

sent to them; and that D. and R. wrote a letter ...


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