
    THE BRIG CLIO. JOHN STEWART, Administrator, v. THE UNITED STATES. DAVID STEWART et al., Receivers of the Maryland Insurance Company v. THE SAME.
    [French Spoliations,
    2168, 2171.
    Decided March 7, 1882.]
    
      On the Proofs.
    
    David Stewart & Sons, in 1796, sustained loss by the capture of the Clio. A younger son does not become a member of the firm until 1802, and is ultimately the surviving partner. He dies unmarried, his only heirs being the descendants of the other members; at their request this suit is brought by the administrator of his estate.
    When the administrator of the surviving partner of a firm represents in fact the descendants and next of kin of those members (father and sons) who suffered loss by the capture of a vessel, and prosecutes the case at their request, the technical objection that the surviving partner was not a member of the firm at .the time che loss occurred will not preclude the court from rendering a decision upon the merits and reporting the case to Congress.
    
      The Reporters1 statement of tbe cáse:
    Tbe following are tbe facts of tbe case so far as they relate to tbe point of practice involved:
    I. Tbe brig Clio, Richard M. Ball, master, a duly registered vessel of tbe United States, of 123.82 tons burden, was owned by the firm of David Stewart & Sons, of Baltimore, Md., which firm was composed of David Stewart, David C. Stewart, and John Stewart, citizens of the United States. William P. Stewart, a younger son of David Stewart, became a partner in 1802, and was the surviving member of the firm.
    II. Said brig in August, 1796, sailed on a commercial voyage from Baltimore, Md., bound to Jeremie, laden with a cargo of flour, rice, tobacco, and similar merchandise, of the value of $8,709.20, the property of the said firm of David Stewart & Sons. On September 1,1796, while on the high seas, in peaceful prosecution of said voyage, said vessel was captured by the French privateer L’Adelaide, Jean Thetard, master, and taken into Petit Guave, and on December 31,1796, both vessel and cargo were condemned by the prize tribunal or commission delegated by the French Government to the Windward Islands, sitting at Cape Francois, and afterwards sold, whereby they became a total loss to the owners.
    III. Said brig was provided with a register, sea letters, invoice, and bill of lading.
    IV. The only ground of condemnation set out in the decree is the fact that the vessel was bound for Jeremie, a port under the protection of the British Government.
    V. On August 4, 1796$ the Maryland Insurance Company insured said firm of David Stewart & Sons in the sum of $12,000, at a cost to said firm of $360 premium, on said vessel, and at a premium cost to said firm of $720 on the cargo; and thereafter said company paid to said insured on account of said vessel and cargo the sum of $12,000 as and for a total loss.
    VI. The actual loss sustained by said firm in consequence of the capture and condemnation aforesaid was as follows:
    Value of Trig at time of capture. $5,125.00
    Value of cargo. 8,709.20
    Two-thirds of freight. 2,066.00
    Premium of insurance paid. 1,080.00
    16,980.'20
    Less amount received from insurance. 12,000.00
    Leaving as the net amount of loss of David Stewart & Sons... i, 980.20
    VII.The Maryland Insurance Company was duly incorporated under the laws of Maryland and authorized to carry on the business of marine and other insurance. David Stewart and John E. Semines are the duly appointed receivers of said company, and represent tbe stockholders of the company in 1843, when it expired. The company was then solvent.
    VIII. John Stewart is the duly appointed administrator de bonis non of the estate of William P. Stewart, surviving partner of the firm of David Stewart & Sons; but WilliamP. Stewart did not become a member of the firm until 1802, a time subsequent to the losses sustained by the firm in consequence of the capture of the Clio. He died unmarried, and with no heirs or next of kin except the children and descendants of the other members of the firm, on behalf of whom this suit is prosecuted by his administrator and at their request.
    
      Mr. W. U. Marie for the claimants.
    
      Mr. 0. W. Bussell for the defendants.
   Nott, J.,

delivered the opinion of the court:

(1) As is appears that the administrator, John Stewart, represents the descendants and next of kin of David Stewart, David C. Stewart, and John Stewart, the original claimants; and that he prosecutes this claim with their knowledge and at their request, the technical error of taking out letters of administration upon the estate of William P. Stewart, a subsequent member of the firm'of David Stewart & Sons, who was also a son of David Stewart, will not preclude the court from rendering a decision upon the merits and reporting the case to Congress.

(2) The seizure and condemnation were illegal, and the owners and insurers had valid claims of indemnity therefor upon the French Government prior to the ratification of the convention between the United States and the French Republic, concluded on the 30th day of September, 1800; these claims were relinquished to France by the Government of the United States by treaty in consideration of the relinquishment of certain national claims of France against the United States; and the claimants, accordingly, are entitled to the following sums from the United States :

John Stewart, administrator de bonis non estate of William P. Stewart, surviving partner of firm of David Stewart & Sons, $4,980.20;

David Stewart and John E. Semmes, receivers of the Maryland Insurance Company, $12,000;

Amounting in all to $16,980.20.  