Blaine v. the Ship Charles Carter Donald and Burton and Others Claimants

• Decision Date: 01 February 1808
• Citation: 2 L.Ed. 636,4 Cranch 328,8 U.S. 328
• Parties: BLAINE v. THE SHIP CHARLES CARTER. DONALD AND BURTON AND OTHERS CLAIMANTS
• Court: U.S. Supreme Court

8 U.S. 328

4 Cranch 328

2 L.Ed. 636

BLAINE v. THE SHIP CHARLES CARTER.

DONALD AND BURTON AND OTHERS CLAIMANTS.

February Term, 1808

ERROR to the circuit court for the district of Virginia.

Blaine libelled the ship Charles Carter, Bell master, owned by M'Cawley, upon two bottomry bonds; one executed in London by Bell the master, on the 14th of July, 1796, and payable ten days after the arrival of the ship in Virginia; the other executed on the 27th of October, 1796, by M'Cawley the owner, in Virginia where he resided, and payable in thirty days after the arrival of the ship in Europe. The answer of M'Cawley admitted the truth of all the allegations of the libel; but a claim was interposed by Donald and Burton, creditors of M'Cawley, who had on the 30th of November, 1797, obtained judgment against him, and at whose suit the marshal on the 30th of December, in the same year, had seized the ship in execution upon several writs of fieri facias, issued on the 7th of the same month, from the circuit court for the district of Virginia, before the warrant of arrest had issued from the district court, upon Blaine's libel. The libel was filed on the 19th of January, 1798, on which day also the warrant to arrest the ship was issued.

It appeared in evidence, that the first bottomry bond was given by the master to Blaine, upon the first voyage

to London, and that the consideration of that bond consisted of money paid to take up a prior bottomry bond and given to one Robertson, and of money paid for seamen's wages, provisions, repairs, and finishing the ship, she having come out from Virginia in a rough unfinished condition, and badly provided with sails and rigging. The money upon this bond was to be paid within ten days after the arrival of the ship in Virginia. She arrived in Virginia on the 28th of September, in the same year; after which the agent of Blaine called for the discharge of the bond, but on failing to receive the money, did not think it necessary to arrest the vessel. Blaine was a very large creditor of M'Cawley, over and above the amount of the bottomry bonds, and was authorised to receive the freights of the ship, and to apply them to his general account current with M'Cawley. The bond of the 27th of October, 1796, was taken in order to secure advances made by Blaine to M'Cawley to enable him to finish the ship before she sailed on her first voyage in March, 1796, to the time of her sailing, or at any time afterwards, and to secure Blaine for money paid by him to discharge three executions which had been served upon the ship. Between the date of the first bottomry bond, and the filing of the libel, the ship made two voyages from England to America, and one from America to England, and the freights were received by Blaine. The district court decreed in favour of Blaine for the whole amount of the first bottomry bond, and for so much of the other as appeared to have been actually advanced for necessaries for the ship; but the circuit court, on the 6th of December, 1799, reversed the decree, and dismissed the libel with costs. Blaine appealed from the decree of the circuit court, to this court, but the appeal was at that time dismissed for want of a statement of facts made in the court below, agreeably to the 19th section of the judiciary act of 1789, c. 20. After the passing of the act of congress of 3d of March, 1803. vol. 6. p. 315. c. 93. the cause was brought up...