The letter and affidavit having been on file, the captors have a right to use them, subject, however, to any explanation, which the other party may offer.)
It is clearly proved, that, in the origin of the transaction, one half of the cargo belonged to the neutral. The only question then is, -whether the neutral has forfeited his right by any misconduct? This question may be considered, 1. As to the effect of the papers found on board. 2. As to the effect of the papers since introduced into the cause.
1. The penalty of confiscation is confined to cases, where there is nothing on board, which can lead the court to a knowledge of the enemy’s interest. Such was the case of Tlie Eenrom. But in the case before the court, no paper on board is contra-dieted by evidence now introduced. The form of the bill of lading is far from being an uncommon one. It might be explained from the invoice. It is said, indeed, that no invoice was found on board. If so, the reason is obvious. The selection of the consignee at St. Petersburg being left to the London house, the invoice was sent to them, together with the bill of lading, which the master left in the hands of one of the house of Maury and Co. For the same reason the cargo was addressed to order generally.
(STORY, Circuit Justice. Was it not the duty of the neutral to put on board such evidence, as would enable the master to state the enemy’s interest?)
A mere negligence or omission will not subject the neutral to the severe penalty of confiscation. Where he deliberately attempts to cover enemies’ property, and there is nothing on board, by which the enemy’s interest could be detected, he is not allowed-to offer evidence in contradiction to the original documents. He cannot show, that the character given to the whole was false only as to a part. But this is not the present case. There was here no designed concealment. There were reasons sufficient for not instructing the master as to the property in the cargo. He was a stranger. It could not be presumed, that he was to be examined. He had, besides, no other connexion with the cargo, than to carry it to St. Petersburg, and there deliver it to persons pointed out. No injury has been done to the cruiser, for in fact no cruiser ever relies upon the information of the captain. Had the captors examined, the letter of the 27th of January could not fail to disclose to them the real nature of the transaction, and the enemy’s; interest in a part of the cargo. The existence of such a letter on board, which there does not appear to have been any attempt to conceal, is the strongest possible evidence, that no fraud was intended. There were, therefore, documents on board, which fully disclosed, that a part of the cargo belonged to a British owner. In the captain’s memorandum, no attempt is made to keep out of sight the London house.
2. Has any thing been done by the neutral since the sailing of the vessel from Malaga, which can subject the cargo to forfeiture? No irregularity committed out of court can be a cause of confiscation. The reason for this penalty, generally, is, that the papers are such as to deceive and mislead the cruiser. If, on production of further proof, there be an irregularity, or even an attempt at fraud, still, if enough appears to show the property to be as claimed, confiscation will not follow. Now, the declaration of one of the partners attached to the invoice, is no part of the documentary evidence. Indeed it is not evidence of any sort, being only the voluntary declaration of the party.
(STORY, Circuit Justice. If this paper be *302admissible at all, it must be as an affidavit supplementary to tbe claim; for though an agent may claim, yet if sufficient time intervene, the principal must support it by his affidavit.)
Had this paper been found on board, the consequences must have been highly penal. But, in the manner in which it has been now produced, it can have no influence on the cause.
(STORY, Circuit Justice. The only question of difficulty in this case is, whether, it appearing to the court, that the neutral has a right, this false declaration shall induce the court to shut out the evidence? Had this declaration appeared among the ship’s papers upon the original hearing, further proof would, no doubt, be refused. It is well settled, that the neutral shall not be permitted to introduce evidence to show a right to part, after having fraudulently attempted to obtain the whole. But, if the evidence is introduced, and the right of the neutral appears, can a false declaration of this nature defeat its effect?)
Trescott. The court attends to no irregularity or iniquity, but such as relates to the cause. It is not the mating of the invoice in Malaga, or swearing falsely to it there, that could induce confiscation, but the effect and use of it here, to deceive and impose upon the court. But in fact no use whatever has been made of it, and it is, therefore, to be entirely disregarded.
STORY, Circuit Justice. This is the case of a British ship, captured on a voyage from Malaga to St. Petersburg. One half of the cargo has been condemned as enemies’ property; and the other moiety was ordered for further proof in the district court, having been claimed in behalf of Messrs. Maury and Co. of Malaga. The further proof has now come in, and the cause is to be decided upon its merits. The preparatory examinations asserted the whole property to belong to Messrs. Maury and Co.; but there was a letter on board, which clearly narrowed their title to a moiety. The whole cargo was, notwithstanding, claimed by their agent, and that claim, as to one moiety, was not abandoned until the appeal to this court at October term, 1813. In January, 1S14, an invoice of the property, with an accompanying letter and affidavit, was forwarded by Messrs. Maury and Co. to their agent in the United States, and at May term, 1814, these papers were regularly filed in the cause. In that affidavit, invoice and letter, the whole property is explicitly asserted to belong to Messrs. Maury and Co., and not the slightest intimation is given of any hostile interest. Indeed, Messrs. Maury and Co. appear at that time to have been ignorant, that their counsel had, abandoned the claim of one moiety, as utterly indefensible.
The further proof, which has been brought in at this term, under an order made in the district court, shows incontrovertibly, that Messrs. Maury and Co. were not owners of more than one moiety of the cargo, and that the other moiety belonged to Messrs. Reeves, Bell and Co. of London. This proof would, in ordinary cases, have been deemed entirely satisfactory; and the only difficulty arises from the gross falsity and fraud of the invoice and affidavit originally furnished by Messrs. Maury and Co. respecting their proprietary interest. “Falsus in uno, falsus in omnibus,” is a maxim of sound morals, as well as of distributive justice. If these fraudulent papers had been originally produced before the order for further proof, the court would have felt itself bound to deny it; for it will never trust a person with an order for further proof, who has already shown, that he is not only capable of abusing, but has been detected in an attempt to abuse it. And if these papers had been inserted in the cause with a view to support the claim to the whole property, I should have held the party bound by his misconduct. A court of prize will never busy itself in unravelling a web of fraud, to aid the party, who has sought to impose upon it. If he knowingly assert and persist in a fraudulent claim, it will affect with forfeiture the whole of his property, which is engaged in the transaction. The Eenrom, 2 C. Rob. Adm. 1; The Graaff Bernstorf, 3 C. Rob. Adm. 109; The St. Nicholas, 1 Wheat. [14 U. S.] 417. There can be no doubt, that the present claimants intended to defraud the captors of their lawful rights, and to withdraw hostile property from confiscation. That they have failed in the attempt is not owing to any repentance or good will on their part.
Still however, in point of fact, this dishonorable contrivance was not actually used to the prejudice of the cause. The good sense and intelligence of counsel had induced them, before the arrival of these papers, to consent to an affirmance of the decree of condemnation of one moiety of the property, and thereby prevented the claimants from committing themselves. Until the papers were actually used, there was a locus paenitentiae. In order to entitle the court to pronounce confiscation upon the moiety now claimed, by way of penalty for the fraud, there should be a combination of intention and act. In this case, the claimants have not, if I may use the expression, been caught in delicto. The only possible effect, therefore, that could be attributed to their misconduct, would be to throw a shade of doubt and suspicion over the further proof now offered to the court. On examining it, however, I cannot but feel a strong impression, that it contains the real, undisguised transactions between the parties; and as it stands completely corroborated by the original documentary evidence, I shall not hes*303itate to give it entire credit, especially as it is vouched by the American consul.
I decree restoration of the moiety now •claimed by Messrs. Maury and Co., upon the payment of the full costs and expenses of ■the captors.