United States v. John Parmele.

another action. If the United States recover in this action, who can say that Parmele may not be vexed by another suit in the name of Rainy or Wolcott? The Court, although it has an opinion, is not called upon to say who would have been the proper plaintiff in this case; but as no promise was made to the United States, it is sufficient to say, that they have altogether failed in making out their cause of action. The Court cannot say, that an engagement to deliver this property to Rainy or Wolcott was one to deliver it to the United States, or to their Marshal of this district. Where there is no difficulty in suing in the name of the party to the contract, there can be no necessity of supporting the suit of a stranger to it; and without a precedent in point, the Court would feel great reluctance in making one.

This case has also been likened to those of principal and factor; and it has been said, and correctly, that the former can sue on a sale made by the latter, although he be not at the time known to the purchaser. Courts of Law, out of their great solicitude to protect the interest of a principal, have gone great lengths in identifying him with his agent or factor, and as a necessary consequence, have permitted a suit in his own name, although he be not, except by implication of law, a party to it. But the Court does not know that such suit was ever sustained on the contract itself, where one in writing took place between the factor and vendor, in which the name of the principal did not appear. What use might be made of such a paper, as matter of evidence, is one thing; but that a suit can be brought upon it in the name of any but a party to it, has not been shown; nor is it believed that such is the law. Without then disturbing any of the cases of this class which have been referred to, this Court cannot, when sitting as a Court of Law, say, that an express and written promise to do a thing to Rainy or Wolcott, is a contract to do the same thing to the United States. It looks in vain to the

United States v. John Parmele.

writing itself for such an engagement; and that is the only source from which it has any right to make its deductions. It is on that which the plaintiffs have relied, and if they do not succeed in showing an assumpsit there, they fail in their action altogether.

Upon the whole, as the United States have sued on a written contract, to which they are not parties, and in which they are not even named, but which appears to have been made with other persons, it is the opinion of this Court, that the judgment of the District Court was erroneous, and must be reversed.

CIRCUIT COURT OF THE UNITED STATES,

CONNECTICUT, APRIL TERM, 1813, AT NEW-HAVEN.

BEFORE

Hon. BROCKHOLST LIVINGSTON, Associate Justice of the 60preme Court.

Hon. PIERPOINT EDWARDS, District Judge.

THE SHIP ANN MARIA.

A vessel which, during the non-intercourse law, took a cargo at St. Croix for Cadiz, with the intention of touching off New-Haven on her way thither, for a supply of provisions, and of terminating her voyage in the United States, if by law it could be done, was held not to be forfeited under the 6th section of that law, which provides against the putting goods on board a vessel with the intention of importing them into the United States.

LIVINGSTON, J. THIS vessel was libelled in the District Court of the United States for this district, as forfeited to the United States; for that certain goods of the growth, produce, or manufacture, of a colony or dependency of Great Britain, were laden on board the said vessel at the island of St. Croix, on the 1st day of June, 1811, "with intent to import the same into the United States, contrary to the true intent and meaning of the several acts of Congress in such cases made and provided, and with the knowledge of the master or owner thereof."

The Ship Ann Maria.

To this libel a claim and answer was filed by Elkanah Atwater, who owns the ship, and denies that the said goods were put on board with an intention to import the same into the United States.

To this claim, there is a general replication on the part of the United States.

After a hearing on the pleadings and testimony, the District Court decreed the said vessel with her tackle, &c. to be forfeited to the United States, and the claimant to pay the costs of the libellants.

From this sentence the claimant has appealed to this Court. On the hearing of this appeal, two questions have been made, the one a question of fact, and the other of law.

It is denied on the part of the United States, that the Ann Maria left the island of St. Croix with innocent intentions; and that if she did, still it is contended that her arrival in the waters of the United States with a prohibited cargo, subjected her to forfeiture.

This being a libel under the 6th section of what is commonly called the non-intercourse act, passed the 1st of March, 1809, and revived and continued by an act passed the 28th of June of the same year, it must be constantly kept in mind that the actual importation of any of the interdicted articles into the United States on board of this vessel, would not have worked her forfeiture unless they had been put on board with intention thus to import them, and with the knowledge of the master or owner.

The Court has carefully examined the evidence which has been given in this cause, and feels itself impelled to come to the conclusion that the cargo in question was taken on board at St. Croix, not with the intention of importing the same into the United States contrary to law, but with a design of carrying it to Cadiz; touching off New-Haven in her way thither, for the purpose of obtaining a supply of provisions,

The Ship Ann Maria.

and probably of terminating the voyage in the United States if by law it could be done. All the testimony whether documentary or parol, justify this belief-the markets at Cadizthe conduct of the owner at St. Croix-his bargain with Smith-the clearance from that Island—the bill of lading— the manifest of the cargo delivered to the officer of the revenue schooner, all speak the same language, and indicate nothing like an intention to violate any law of the United States.

But it is supposed that the arrival of this vessel in the waters of the United States, is not only conclusive proof of an original intention to import the goods on board into this country contrary to law, but is in point of fact such an importation of them, and necessarily renders the vessel liable to forfeiture.

The Court will not decide, for that question is not before it, whether the cargo of the Ann Maria might not be considered as sufficiently imported into the United States, to have rendered it subject to seizure and confiscation, because were that the case, it would not necessarily draw after it a condemnation of the vessel, whose fate must depend not on the importation of the goods, but on the. intention which existed at the time they were taken on board. If at that time there was an intention to commit an offence against the non-intercourse act, the vessel might have been seized if she ever came to this country, although the cargo had been thrown into the sea, or disposed of in any other way.

The only use in the present case which ought to be made of the arrival of this vessel in our waters, is as proof of an original intention to import the cargo into the United States. In that point of view it has been fairly pressed on the consideration of the Court, and has not been overlooked in deciding the facts of the case. Although a strong circumstance, it is sufficiently accounted for, without imputing to the master or owner any design of violating the laws of his country. It would hardly occur to any American abroad, who might have