4 Dall. 308 (Pa. 1804), Duncanson v. McLure

Citation:4 Dall. 308, 4 U.S. 308, 1 L.Ed. 845
Opinion Judge:PONS Judge.
Party Name:Duncanson v. M'Lure.

Page 308

4 Dall. 308 (Pa. 1804)

4 U.S. 308, 1 L.Ed. 845




Supreme Court of Pennsylvania.

September, 1804

THIS was an action of trover for the ship Mount Vernon, which the defendant had purchased, under a sentence of condemnation as prize, pronounced by the French Provisional Tribunal of Prizes, established in the city of St. Domingo . The material facts of the case were these:1 ‘ Mr. Duncanson, an English gentleman, came to the United States with a view to settle; and, in order to manifest his intention, took an oath of allegiance to the state of Pennsylvania, though he had not been long enough in the country to entitle himself to naturalization, under the act of congress. Contemplating a circuitous voyage from America to England, and thence to the East-Indies, he applied to Messrs. Willings and Francis to procure a ship for him; and those gentlemen agreed absolutely with Mr. Thomas Murgatroyd, for the purchase of the ship Mount Vernon, owned by him; the bill of sale being made out, and delivered to them, upon terms of payment precisely ascertained. It, then, however, occurred to Mr. Duncanson, that as he had not yet acquired the rights of American citizenship, he could not enjoy the advantages, which he proposed to derive from his projected voyage. For, the trade from England to the East-Indies is, by the law of that kingdom, a monopoly; no British subject can, individually, embark in it, without incurring a forfeiture of his vessel and cargo; though it has recently been adjudged in England, that an American citizen is entitled to carry on the trade, by virtue of express stipulations in the treaty of amity and commerce between the United States

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and Great-Britain .2 Hence it was deemed necessary to enter upon another operation. The bill of sale was sent back, and a new contract was formed between the parties, upon these principles: that Mr. Murgatroyd should remain the owner of the ship, and as such retain the register and make the insurance; 3 that she should, however, be delivered to Mr. Duncanson, or his agents; that Messrs. Willings and Francis should procure a freight for her on Mr. Duncanson 's account; that Mr. Murgatroyd should empower Mr. Skirrow (a gentleman who went as a passenger) to assign and transfer the ship to Mr. Duncanson in England, on the 1st of September ensuing, at which time Mr. Duncanson would be duly naturalized as an American citizen; and that the consideration money should be secured by the notes of Messrs. Willings and Francis, payable, at all events, in certain instalments.’

The Mount Vernon sailed from Philadelphia on the 10th of June 1796, with the usual documents of an American vessel. As soon as she had cleared the capes of the Delaware, she was boarded and taken possession of by ‘ the Flying Fish ,’ a French privateer, and carried into the port of St. John, in the Spanish island of Porto Rico . While she remained there, the ship and cargo were libelled by the captors, in the Provisional Tribunal of Prizes, at the city of St. Domingo, in the island of St. Domingo ; a Court established by the republic of France in that city, for the determination of questions of prize. And on the 30th of August 1796, after various proceedings, the following sentence was pronounced, by the Court:

‘ Thirteenth Fructidor, fourth year.

‘ Condemnation of the English ship Mount Vernon .

‘ Extract from the books of the office of the provisional tribunal respecting prizes established in St. Domingo .

‘ We Francis Pons, Judge of the provisional tribunal respecting prizes established in St. Domingo, having looked over our sentence of the seventh Thermidor last, where all the papers exhibited by citizen Nadal, captain of the privateer Flier, against the ship Mount Vernon, are duly noticed, through which we had submitted the decision of this prize to the civil commission of Guarico, which applies again to our tribunal for pronouncing sentence on this subject; having noticed also instructions which were officially given us by the citizen agent of the French Republic in this city, issued by the civil commission aforesaid, in whose archives they have been duly recorded,

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from which it appears, first, that the papers having been thrown into the sea by the captain in sight of the privateer which captured him, secondly, that the captain and supercargo having precipitately abandoned their ship, in spite of the good treatment received by them from the French captain, and the hints he gave them about remaining there in order to plead their own cause, and thereby avoid her confiscation, thirdly, the behaviour of the captured crew, fourthly, the captain being a Portuguese, without a certificate of his naturalization, fifthly, that the United States, in the last treaty which they concluded with England, having suffered to be added to the articles which have been looked upon till at present as contraband of war, staves, tackles, sail-cloth, iron hoops, and finally all which can be made use of for vessels, are sufficient motives to condemn said ship; after a serious examination we have judged and do judge that the ship Mount Vernon, captain George Dominico, Portugueze, with her cargo, has been duly and justly captured by the French privateer commanded by citizen Nadal, to whom we adjudge her as property belonging to him, and of which he may dispose under the clauses and conditions made with his officers and crew, he being accountable for the duties of invalids and the costs of...

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