1781.
perty was subsisting, if not at the time of the deposition, yet, at least, on the arrival of the ship at Dominica, October, 1780. And Morson, & Company’s letter, to Brantlight & Son, dated 6th March, 1781, after the rupture with Holland, and shortly before the ship left Dominica, and which was found on board, proves the property to be then subsisting: for, in the close of the letter, they say, “captain Waterburgh has drawn on you, in our favour, for disbursement, ₤191:15s;” which disbursement plainly refers to disbursements of the ship, which Brantlight & Son could not be chargeable with, if they had parted with the property, and were no longer owners.
No evidence at all is produced to shew a change of property, or transfer of the ship. And, therefore, the fact being admitted, that she was the property of Brantlight & Son, on her arrival at St. Eustatia, in 1780, and the property being proved to be subsisting in October, 1780, and proved, to be subsisting in March, 1781, a few days before she sailed from Dominica, we cannot doubt, but that the property was subsisting at the time of her capture. She was then no prize to the British privateer; because protected by the British Proclamation: She was no prize to the American privateer; because she was the property of the subjects of the States General, a nation in peace and friendship with America.
“But the papers, it is said, prove the cargo to be the property of persons, not capitulants: For Morson & Company, in their letter of the 6th March, 1781, speak of Kender Mason, as a shipper, who is not a capitulant.”
What does this letter say? It is addressed to Brantlight & Son, and informs them, that the rupture with Holland, occasioned all shipments to stop; that afterwards, the British Proclamation, protecting the Holland vessels from capture, for a limited time, on their passage back from Dominica, came to hand; that even then, no one but Kender Mason and themselves would ship; that, afterwards, shipment went generally on.
This letter proves clearly, that the cargo was shipped by many different persons. Not only Kender Mason shipped, but Morson & Company also shipped, and there were other shippers, who were alarmed, notwithstanding the British Proclamation, and would not immediately ship, though afterwards they proceeded to ship.
To what extent did Kender Mason ship? Morson & Co’s letter, which is the only evidence that he shipt at all, goes no further than to prove, that he shipt a part of the cargo. How shall this part be ascertained?
The ship, it is admitted, by counsel on both sides, was consigned to Morson & Co. and Alexander Hendrickson; and it appears from the papers on board, that upwards of two thirds of