1818. The Star. property had been in the enemy's possession. Bynk, C. J. Pub. I. 1. ch. 5. But as between the United States and the Netherlands, this matter is regulated by the convention of 1782, the first article of which provides, that recaptured vessels of either nation, not having been twenty-four hours in possession of the enemy of either, shall be restored on payment of one-third salvage, if re-captured by a privateer. By the 2d article, if the vessel has been twenty-four hours in possession of the enemy, and is recaptured by a privateer, she shall be condemned to the re-captors. By the 3d article if the recapture is made by a public ship, the property is to be restored on payment of a thirtieth part for salvage, in case it has been twenty-four hours in possession of the enemy; if longer, a tenth part. The treaties between the United States and Prussia of 1785, and 1799, by which recaptures from a common eneIny were regulated, have both expired. The ancient law of Denmark condemned after twenty-four hours possession by the enemy, and restored, if the property had been a less time in his possession, upon payment of a moiety for salvage. But the ordinance of the 28th of March, 1810, restored Danish or allied property without regard to the length of time it might have been in the enemy's possession, upon payment of one-third for salvage. By the ancient Swedish ordinances, and that of July, 1788, it is provided, that the rates of salvage on Swedish property shall be one half of the value, without regard to the length of time the property may have been in the enemy's possession. The treaty between the United States and Sweden of 1783, which has expired, contained precisely the same stipulations on this subject as that with the Netherlands. Although our salvage act may not, perhaps, extend to cases of recapture from pirates, yet there can be little doubt that the benefit of the same equitable rule of reciprocity which is recognized by the statute, and is álso a principle of public law, would be imparted to such cases. Thus Valin is of the opinion that the property of friendly nations, retaken from pirates by French captors, ought not to be restored to them upon payment of salvage, if the law of their own country gives it wholly to the retakers, otherwise there would be a defect of reciprocity, which would offend against that impartial justice which is due from one state to another.1 As a capture by pirates cannot devest the title of the original owner by any length of possession, however great, it is obvious that the former proprietor is entitled to restitution in case of recapture from them by friendly powers, upon the payment of a reasonable salvage. But certain nations have established a different rule, at least, as respects the property of their own subjects and give the whole property recaptured from pirates to the re-takers. Such was, or is, the usage of Holland, Spain, and some of the Italian States. Grotius, De J. B. ac. P. L. 3. eh. 9. s. 17. De Habreu, Part 2, ch. 6. But Grotius is of the opinion that such a municipal regulation cannot prevent foreigners from reclaiming their property, upon payment of a reasonable salvage, because by the universal law of nations the property of the original owner is not devested on a capture by pirates. lb. And by the 9th article of the treaty of 1795, between the United States and Spain, the latter has dispensed with her peculiar law in this respect, both parties having stipulated to restore the property of either nation recaptured from pirates. In case of recapture from pirates, the French law restores the property of subjects and allies, (in which last term, neutrals are included,) on payment of one-third for salvage.2 A capture by a cruizer of the Barbary powers is not a piratical seizure, which will 1. "Me feroit penser, que les allies qui aux termes de notre article ont droit de reclamer leur effets repris sur des pirates par des Francois ne doivent s'entendre que de ceux qui suivant la meme jurisprudence que nous; autrement, il n'y auroit pa de reciprocite: ce qui blesseroit, l'egalite de justice, que les etats se doivent les uns aux autres. Sur l'Ord. L. 3 tit. 9 art. 10. Traite des Prises; ch. 6 s. 2 n. 8. 2. "Les navires et effets ds nos sujets ou allies repris sur les pirates et reclaimes dans l'an et jour de la Declaration qui en aura ete faite en l'Amiraute, seront rendus aux proprietaires, en payant le tiers de la valeur du va isseau, et des marchandises pour frais 'de recousse. Ord. de 1681. L. 3 tit 9. Des Prises art. 10. 1818. The Star. 1818. The Star. have the effect of invalidating 324. The Madonna del Bur- kin's works, Vol. 11. p, 791. tom. 1. p. 526. 1 But the law ena, 4 Rob. 3. But they are held to be bound to an observance of the law of blockade that being one of the most universal and simple operations of war; and if a European army or fleet is blockading a town or port, they are not at liberty to trade with it. The Hurtege Hane, 3 Rob. 324. And though, in prize causes, an indulgence is granted to the subjects of the Ottoman empire, which is not allowed to any foreignors of Christendom in consideration of their peculiar situation and character, and of their not being professors of 1. Depuis long-temps, les mœurs antiques ctoient disparues des Bords, Africaines. Les Barbaresques etoient devenus de vrais pirates. Bugia ed algieri,infami,nidi di corsari, dit le Tasse; Jerusalem deliverec, chant. 15, st. 21. Mais au jourdhui ils ne merite plus cette qualification, prace que dans laur guerre, ils se conforment a l'ancien droit des gens. Ce n'est que par represailles que leures prisonniers deviennent esclaves parmi nous." Emerigon, ioc. cit. Tom. 1 p. 256. and other continental ordinances. Restitution to the original owner, is, however, universally decreed in such cases without regard to the length of time the recaptured property may have been in the enemy's possession; and the rate of salvage is discretionary and dependant upon the value of the services performed. The Two Friends, 1 Rob. 271. The Walker, Stewart, 105. Valin, Traite des Prises, ch. 6, s. 1, n. 18. Bonnemant's Translation of of De Habreu, tom. 2, o. 84. Emerigon, Des Assurances, tom. 1, p. 505, 1818. Lanusse V. Barker (COMMON LAW). LANUSSE V. BARKER. B., a merchant in New-York, wrote to L., a merchant in New-Orleans, on the 9th of January, 1806, mentioning that a ship belonging to T & Son, of Portland, was ordered to New-Orleans for freight, and requesting L. to procure a freight for her, and purchase and put on board of her five hundred bales of cotton on the owners' account; "for the payment of all shipments on owners' account, thy bills on T. & Son, of Portland, or me, 60 days sight; shall meet due honour." On the 13th of February, B. again wrote to L. reiterating the former request, and enclosing a letter from T. & Son to L. containing their instructions to L. with whom they afterwards continued to correspood, adding, "thy bills on me for their account, for cotton they order 1818. Lanusse V. Barker. shipped by the Mac, shall meet with due honour." On the 24th of July, 1806, B. again wrote L. on the same subject, saying, "the ow ners wish her loaded on their own account, for the payment of which, thy bills on me shall meet with due honour at 60 day's sight." L. proceeded to purchase and ship the cotton, and drew several bills on B. which were paid. Hc, afterwards, drew two bills on T. & Son, payable in New-York, which were protested for non-pay. ment, they having, in the meantime, failed; and about two years afterwards, drew bills on B. for the balance due, including the two pro tested bills, damages, and interest. Held that the letters of the 13th of February, and 24th of July, contain- It was also held that L. by making his election to draw upon T. & Son, An agreement of the parties entered on a transcript, stating the amount ERROR to the circuit court for the district of NewYork. This was an action of assumpsit brought in the circuit court of New-York by the plaintiff in error, against the defendant, to recover the amount of 500 bales of cotton, shipped by the plaintiff from New |