Dawson's lessee v. Goney, 4 Cranch, 321, it was held that a person born in England before the declaration of independence, and who always resided there, and never was in the United States, could not take lands in Maryland by descent. And in the case of Smith v. the State of Maryland, 4 Cranch, 286, it was determined that by the acts of Maryland, 1780, ch. 45 and 49, the equitable interests of British subjects in lands were confiscated, and vested in the state, without of fice found, prior to the treaty of peace of 1783, so that the British cestui que trust was not protected by the stipulation in that treaty, against future confiscations, nor by the stipulation in the 9th article of the treaty of 1794, securing to British subjects, who then held lands in this country, the right to continue to hold them. In the supreme court of N. York it has been held, that where a married woman was a subject of Great Britain before the revolution, and always continued such, but her husband resided in this country both before and after that period she was entitled to dower out of 1818. Jackson V. those lands of which he was seised befere the revolution, but not of those of which he was subsequently seised. Kelly Clarke. v. Harrison, 2 Johns. Cas. 29. The same court has also d termined, that where a British subject died seized of lands in the state in 1752, leaving daughters in England who married British subjects, and nei ther they nor their wives were citizens of the United States; even if the marriages were subsequent to the revolution, such marriages would not impair the rights of the wives, nor prevent the full enjoyment of the property according to the laws of the marriage state, especially after the 5th provision in the 9th article of the treaty of 1794 The court seemed also to think that where the title to land in the state was acquired by a British subject prior to the revolution, the right of such British subject to transmit the same by descent, to an heir in esse at the time of the revolution, continued unaltered and unimpaired; the case of a revolution or division of an empire being an exception to the general rule of law, that an alien cannot take by descent. Jack 1818. The Friend schaft. son v. Luan. 3 Johns. Cas. 109. In the case of Fairfax's de- quired by an alien enemy is no devested until office found. 3d. That whether the treaty of peace of 1783, declaring that no future confiscations should be made, protects from forfeiture, under the municipal laws respecting alienage, lands held by British subjects at the time of its ratification, or not, yet that the 9th article of the treaty of 1794 completely protected the title of a British devisee, whose estate had not been previously devested by an inquest of office, or some eqivalent proceeding The FRIENDSCHAFT-Winn, et al. Claimants. Informal and imperfect proceedings in the district court corrected and explained in the circuit court. A bill of lading, consigning the goods to a neutral, but unaccompanied by an invoice or letter of advice, is not sufficient evidence to entitle the claimant to restitution; but is sufficient to lay a foundation for the introduction of farther proof. The fact of invoices and letters of advice not being found on board, may induce a suspicion that papers have been spoliated. But even if it were proved that an enemy master, carrying a cargo chiefly hostile, had thrown papers over board, a neutral claimant, to whom no fraud is impatable, ought not thereby to be precluded from farther proof. 1818. schaft. The native character does not revert, by a mere return to his native country, of a merchant, who is domiciled in a neutral country at the time of capture; who afterwards leaves his commercial establishment The Friendin the neutral country to be conducted by his clerks in his absence; who visits his native country merely on mercantile business, and intends to return to his adopted country. Under these circumstances, the neutral domicil still continues. British subjects resident in Portugal, (though entitled to great privileges,) do not retain their native character, but acquire that of the country where they reside and carry on their trade. APPEAL from the circuit court for the district of North Carolina. The brig Friendschaft was captured on a voyage from London to Lisbon, by the privateer Herald, and brought into Cape Fear, in North Carolina, where the vessel and cargo were libelled, in July, 1814, as prize of war. The commercial agent of his royal highness the Prince Regent of Portugal, interposed a claim to several packages, parts of the said cargo, on behalf of the respective owners, whom he averred to be Portuguese subjects and merchants residing in Portugal. The cargo consisted of many different shipments. Most of them were accompanied with bills of lading, directing a delivery to shipper or order. Of these a few were specially indorsed. Generally, however, they were without endorsements, or with blank endorsements only. A few shipments were accompanied with bills of lading, deliverable to persons in Lisbon, especially named in the bills. Very few were accompanied with letters or invoices. These, it was alleged in the claim, had probably been sent by the regular packet. In August 1814, the district court pronounced its 1818. The Friend schaft. sentence, condemning as prize of war, "all that part of the cargo for which no claim had been put in," and "all that part of the cargo which was shipped, as evidence by bills of lading, either without endorsement or with blank endorsements, and not accompanied by letter or invoice, viz. and that part appearing by the bill of lading to consist of forty bales of goods shipped by Moreira, Vieira, and Machado. Farther proof was ordered with respect to the residue of the cargo and the vessel. From this sentence the claimants appealed to the circuit court. That court, in May, 1815, dismissed so much of the appeal as respected the brig, and that part of the cargo in respect to which farther proof was ordered, as having been improvidently allowed before a final sentence, and affirmed the residue of the decree, except in regard to the forty bales shipped by Moreira, Vieira, and Machado, with respect to which farther proof was directed, to establish the right of Francis Jose Moreira to restitution of one third part thereof. In April, 1816, farther proof was exhibited to the district court, in support of the claim for the parts of the cargo comprehended in the bills of lading numbered 108, 109, 141, 122, and 118, which bills being deliverable to merchants residing in Lisbon, whose names were expressed therein, were not endorsed. The farther proof was deemed sufficient and restitution was ordered. The vessel and the residue of the cargo were condemned as prize of war. From so much of this sentence as awarded resti tution, the captors appealed; and in May, 1816, the From this decree the captors appealed to this court. On the interposition of this appeal, the circuit court ordered that Joseph Winn, a British born subject, resident in Portugal, in whose behalf a claim was filed to No, 118, should be permitted to offer farther proof to the supreme court, to be admitted or rejected by that court. Mr. Wheaton, for the appellants and captors. 1. The decrees of the district court of August, 1814, and of the circuit court of May, 1815, were final and conclusive, and ought to have precluded the district. court from subsequently allowing farther proof as to these five claims. The terms of general description, VOL. III. 4 1818. The Friendschaft. |