The Mary and Susan. 1 W. to store them in Liverpool as the goods of G. and 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. and H. Van Wagenen. The words of that letter, which bear particularly on this point, are, “ 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, agreeable, to your kind order." 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. and H. Van Wagenen. This letter is addressed to the house which had given 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 dispatch 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, *which were to be executed at an inland place, by a house [ 37 ] 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 actual 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 mere possession; but in the state of trade which existed at the time of this transaction, such 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 trransaction, or, rather, two distinct operations. We look for some intervening evidence of ownership in the person for whom the purchase was made, and are not surprised at finding The Mary and Susan. 1 W. it. If, in such a state of things, the goods were procured under a general order to purchase, but not 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 and inspection. Their conveyance to seaport, there to be stored until their [38] *importation into the United States should be allowed, was such a fact as would scarcely have taken place without special orders, in the course of which 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 not unreasonably to be expected. The court considers this letter, then, as proving incontestably 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 over 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 their own security, it could not be wantonly used to the destruction of the property of G. and 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, & Co., themselves, states the merchandise it [ 39 ] specifies to have been purchased by Daniel Cross & Co., by order, and on account and risk of Messrs. G. and H. Van Wagenen, and to have been forwarded to Liverpool more than twelve months anterior to the date of the shipment. Goods thus purchased, and thus conveyed to a seaport, 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 has to secure the payment of the money 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 assignment could only operate as an order for G. and H. Van Wagenen to pay the The Mary and Susan. 1 W. money to them, (Spooner, Attwood, & Co.,) and would, probably, in its form and expressions, 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, further 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. and 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 it. [*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. and H. Van Wagenen were American merchants, desirous of receiving the goods they had ordered as soon as 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, friendly 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 Britain. 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 connection between Daniel Cross & Co., and G. and 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 of all the parties; keeping this situa tion 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 shippers 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." [ 41 ] They speak of the vessel and of the freight, 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 reduction in the freight." They next refer to the letter of The Mary and Susan. 1 W. their friends, Spooner, Attwood, & Co., to show the inconvenience they had sustained as young merchants, but without any indication of an interference of that house in the shipment, and conclude with saying, "the amount of invoice, herewith, to your debit, is 8201. 2s. 1d., 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 has executed, completely, the order which had been given him; but who, having been compelled to borrow money, had 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 & 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 Cross & Co. had purchased for your account, and which we now forward to you, requesting that you will remit the amount of 8201. 2s. 1d. to us at your earliest convenience." Nothing is said in this letter respecting the [ 42 ] vessel by which the goods were sent; nothing indicating the exercise of any judgment by Spooner, Attwood, & Co., respecting the time or manner or 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. and H. Van Wagenen, 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 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 be 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. and H. Van Wagenen. Whatever may have been the form of this assignment, 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. and H. Van Wagenen, or to control the proceedings of The Mary and Susan. 1 W. * Daniel Cross & Co., under the order they had received. Why, then, are the goods, when put on board The Mary and Susan, [43] in pursuance of the orders of the claimants, to be consid ered not their property, but as the property of Spooner, Attwood, & Co. ? It is said that they were shipped by Spooner, Att wood, & Co., not by Daniel Cross & 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. and H. Van Wagenen. On this ground, the claimants could raise no objec tions to the conduct of Daniel Cross & Co. But it is said that Daniel Cross & Co. might have had the funds of G. and H. Van Wagenen in their hands, in which case the claimants would have been compelled, by receiving the goods, to pay their amount to Spooner, Atwood, & Co.; consequently, this assignment must be considered as creating in Spooner, Attwood, & Co. new rights, which released G. and 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 [ *44 ] injury on the claimants by transferring their right to the money to Spooner, Attwood, & Co. The effect of the transaction is precisely the same as if they had drawn a bill in favor of Spooner, Attwood, & Co. for the amount of the invoice. It is said that the assignment gave to 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 elec‐ tion in G. and 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 ap pear 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. Certainly it |