The Mary, 12 U.S. 388 (1814)

U.S. Supreme Court

The Mary, 12 U.S. 388 (1814) The Mary

12 U.S. 388

APPEAL FRO THE CIRCUIT COURT

FOR THE DISTRICT OF RHODE ISLAND

Syllabus

A case of withdrawing funds and further proof.

The following is a statement of the facts connected with the case:

General Garret Visscher, alias Fisher, a native of the State of New York, entered into the British army before the revolution, and having obtained the rank of lieutenant general, died in England, rich, intestate, and without issue, leaving a large number of relatives citizens of the State of New York residing at or near Albany. Mr.

Page 12 U. S. 389

Nanning J. Visscher, one of the number, went to England and met with no obstruction in obtaining letters of administration, and possessing himself of the estate to the amount of �150,000 sterling. In August, 1812, he set himself in motion to return to the United States, and did return, leaving Mr. Harman Visger, his agent, in England, to transmit the property to the United States for the use of those concerned. Harman Visger, finding that he could not remit to this country in the course of exchange without great loss, invested a large sum in goods of the growth and manufacture of Great Britain, and to transmit a part of them to the United States hired, on freight, the brig Mary, an American registered vessel belonging to J. B. Kennedy of South Carolina. The brig, being at the port of London, was sent to Bristol in July, 1812, to take on board this cargo. She arrived off that place, according to her log book, on the 23d of the same month. On the 30th, an embargo was laid in England on account of the war, and on 1 August, the custom house mark of stop was put on the Mary. Having been detained some time by the embargo, she sailed from Bristol, with the cargo on board, on or about 15 August, 1812, bound to New York. Soon after she put to sea, she sprung a leak and, on 21 August, 1812, put into Waterford, in Ireland, to repair. Requiring a complete repair, her cargo was relanded and stored in the King's storehouses, and she was repaired by the freighter, at an expense of 1700l, sterling, to secure which he took from the captain a bottomry bond. On 7 April, 1813, the Mary sailed from Waterford, having cleared out for Newport, in Rhode Island, in order to avoid the blockade which was supposed to exist as to New York. Before sailing, a British license of the description usually denominated a Sidmouth license was obtained for her from the King's privy council by Mullet, Evans & Co., subjects of the King of Great Britain. The license ran in their name and purported to be a renewal of a similar license granted on 8 July, 1812. She had no license from the American government. On 23 April, 1813, she was captured on the high seas by the American privateer Paul Jones and sent into Newport with a single prize master on board, the captain being left in command of the vessel and in possession of the ship's papers. On her arrival at Newport, she was libeled

Page 12 U. S. 390

by the captors as being and bearing enemy property and also by the United States for a breach of the nonintercourse acts. The claimants made application to the Secretary of the Treasury, and he, under the Act of January 2, 1913, "directing the Secretary of the Treasury to remit fines, forfeitures, and penalties, in certain cases," remitted the forfeitures and penalties accruing to the United States.

The brig's papers were regular, proving her to be an American registered vessel.

The invoices and bill of lading stated her cargo to be shipped by Harman Visger on account of the heirs of general Fisher, citizens of the United States, and consigned to Peter Remsen & Co. New York, to account with Nanning J. Visscher, administrator, or with Barent Bleecker, Esq. of Albany, agent for the heirs. The invoices were all dated 13 August, 1812. The bill of lading had no date, but by its reference to the invoices, the shippers have given it the semblance of the same date.

War was declared by the United States against Great Britain on 18 June, 1812, and the fact was known in London on 26 July, following; the news was stated on that day in the public gazette in London to have been received in Liverpool on the 18th of the same month.

The claimant was in England when the Mary sailed, and for some time after, and made no attempt to countermand the voyage. Insurance was obtained in England, freight paid, as well as license and brokerage money, and the exportation duties, before the Mary sailed.

The brig and cargo were acquitted in the district court, but condemned in the circuit court, and from the decree of the latter the claimants appealed.

Page 12 U. S. 397

The Court made the following order:

Page 12 U. S. 398

It is ordered that the claimant have leave to make further proof, by affidavits, as to the following points:

1. As to his own citizenship.

2. As to the names of the heirs of General Fisher who are interested in the property, the places of their residence, and their national character.

3. As to the time when Mr. Nanning J. Visscher went to England, the objects which he had in view in going thither, how long he resided there, when the cargo claimed by him was purchased, and when he returned to the United States. And

4. As to the instructions which the Paul Jones had on board at the time of the capture of the Mary, and particularly whether the instructions of the President of 28 August, 1812, had been delivered to the captain or had come to the knowledge of the captain at the time of the capture, or whether the Paul Jones had been in port after 28 August, 1812, and before the capture.

It is further ordered that the captors be also at liberty to make further proof as to these several matters.