1818. he Friendschaft. which are used by the judge of the district court, are equivalent to a particular designation of the claims intended to be condemned. "All that part of the cargo which was shipped as evidenced by bills of lading, either without endorsement, or with blank endorsements, and not accompanied with letter or invoice,"is as effectually condemned by the sentence, as if the particular portions of the cargo thus documented had been specifically enumerated. The portions now claimed were shipped as evidenced by bills of lading, either without endorsement, or with blank endorsements, and not accompanied with letter or invoice. Consequently, they were included in the condemnation by the district court, which became final and conclusive upon the parties, by The decree of the circuit court rendered at May term, 1815, affirming that of the district court, and from which no appeal was entered. The subsequent proceedings, by which the district court admitted the claimants to farther proof, were, therefore, coram non judice, and utterly null and void. These branches of the cause were completely extinct, and could not be revived in any court. 2. And can this court have the least doubt of the justice and legality of this decree of the district court, as thus understood and explained? Is it possible that it is come to this, that in a court of prize, a mere bill of lading to A. B. or assigns, unsupported by any other documentary evidence found on board, or by the oath of the master, shall be regarded as sufficient, even to entitle the party to farther proof?. If goods shipped in the enemy's country can pass The Friend the seas under so thin a vei! as this, the defects of 1818. which may afterwards be supplied by fabricated proofs, what security is there for belligerent rights?schaft. To what cause are we to attribute a transaction so unusua! and irregular in commerce, but to the desire of the British shippers and owners to retain in their own hands the double power of stopping the goods in transitu, and of enabling the consignees to claim them in the prize court in case of capture? If this practice be tolerated by the court, the enemy shipper need resort to no complicated machinery of fraud in order to cover his property. He need do no more than put on board a bill of lading, unaccompanied by any invoice of the goods, or letter of advice showing to whom the property vests. In case of capture, nothing more will be necessary than to enter a claim in the name of the neutral consignee, and to demand an order for farther proof, and under that order to ransack the great officina fraudis to find the instruments of forgery and perjury; the aid of which will not become necessary, in case the shipment thus made, escapes the vigilance and activity of the belligerent cruisers. Should they thus escape, the goods will be sold on account of the enemy shipper, and the proceeds of the sale will be remitted to him again by the same process; and thus the whole of the enemy's trade may be effectually screened from the perils of war. A bill of lading is an instrument too easily fabricated, to permit a court of prize to consider it alone as furnishing any proof, (even presumptive,) of property in the consignee. Whether the goods had been previously ordered by the Portu 1818. The Friendschaft. guese consignce, or sent by the British shipper for sale on his own account, they would equally have been accompanied by the same document, which is equivalent to no cvidence whatever of proprietary inerest found on board. Unless some such evidence be found on board, or a foundation be laid by the preparatory examinations of the captured crew, to let the claimants into farther proof, the necessary simplicity of the prize proceedings forbids a resort to extraneous testimony; and, as that originally before the court is insufficient to entitle the party to restitution, Condemnation must ensue. Not only are the bills of Jading unaccompanied by invoices and letters of advice, but they do not express the shipment to be "for account and risk" of the consignees; and the freight is payabie in London, and, (of course,) by the consignors. These circumstances distinguish this case from all those cases in which it has been determined, (under the municipal law,) that a bill of lading, expressing the shipment to be for account and risk of the consignee or his assigns, vests the property in him, subject only to the right of stoppage in transitu; and the same circumstances liken it to those where the obligation on the part of the consignor to pay the freight was held to authorise him to bring an action against the carrier master for the goods notwithstanding the form of the bill of lading.a It is wholly incredible, that the letters and invoices which ought to have accompanied these shipments, were sent by the Lisbon packet, (as suggested,) since G. Davisetal v. James, 5 Burr. 2680. Moore v. Wilson, 1 T. R. 659. 1818. The Friend though duplicates of such papers may be sent, and frequently are sent, by conveyances, other than that of the ship in which the goods are transported, yet schaft. it is unusual and mercantilely irregular not to send the originals with the goods. The invoices are, by the revenue laws of most, if not all countries, indispensa. bly necessary to enter the goods at the custom-house, avoiding the inconvenience of unpacking and valuing them. These papers are required by the law of nations, and the prize code of every country, to accompany the bill of lading, in order to fortify and confirm it. The absence of them does not, indeed, in all cases, furnish a substantive ground of condemnation, and exclude the party from farther proof. But in order to avoid this consequence there must be some favourable presumption raised by the circumstances of the case, and the nature of the documentary evidence found on board. This presumption cannot exist in the case of a shipment in the enemy's country, of goods, the growth of manufacture of that country, ander a bill of lading, unsupported by the oath of the master, and unaccompanied by any invoice, letter of advice, or other document whatever. The privilege of farther proof is imparted under the sound discretion of the court, where a foundation is laid for it, by the papers found on board, and the depositions of the captured persons. Neither the documentary evidence, nor the examinations in preparatorio, afford any foundation for it in the present case; since they do not furnish any, the slightest reason for believing, that it belongs as claimed. The court would be 1818. opening a wide door for fraud, were it to extend the The Friend- Privilege of farther proof to such a case, which is neither one of honest ignorance or mistake schaft. It is impossible that the parties should have been ignorant of what both the usage of trade, and the practice of prize courts, require. It is impossible that they should have omitted by mistake, what could not have been omitted but by design. The ancient French prize law, and the prize regulations of many other countries, do absolutely exclude farther proof, and condemn, or restore, upon the original evidence only. If by the more mitigated practice which this court has adopted, farther proof be sometimes allowed, it is not as of strict right, but of equitable indulgence, where the circumstances of the case lay a foundation for it, and the claimants do not forfeit the privilege by their own misconduct. 3. No additiona! farther proof ought to be admitted in this court, under the special orders of the circuit court, in the claim of Mr. Winn, giving him liberty to produce still farther proof (in addition to the farther proof ex hibited to the district court,) in this court, to be admitted, or rejected at the discretion of the court. It is a settled principle of practice, that farther proof cannot be introduced in this court, unless un der the circumstances of the case, it ought to have been ordered in' the court below. Such isthe limitation to the admission of farther proof in the appellate tribunal, which has been established by the lords of appeal in England and adopted by this court. If, as has been contended, farther proof ought not to |