
    De Wolf against The New-York Firemen Insurance Company.
    Insurance, by the defendants^6 on"dz fraín ’ atJW York to Havanna, and, at and from **uira,t0 and Porto Cabello, them, at a preyer'cmi**1' to return five and cent, if the risk ended at H., without percent' if oniy one of ^the ports was used, andjhe without loss: mcrican pro-cargo", consisting of flour and pork, was purchased of the plaintiff, a native American citizen, residing in New-York, by L,, a Danish citizen of Sl^T/iomas? then in New-York, under a contract entered into here, by which the plaintiff agreed to deliver the cargo to L., at Havanna, or at Laguira, or Porto Cabello, at Jive per cent, advance on the invoice, or cost, paid by the plaintiff, and the freight, and premium of insurance, paid by the plaintiff. The cargo was consigned, by the plaintiff, to Spanish merchants, at Havanna, (designated by L.) with instructions to dispose of the cargo, for the plaintiff’s account, &c. or to send it to another market, that is, to a windward port. The bill of lading expressed, that the. cargo was shipped for the account and risk of the plaintiff, to be delivered at Havanna, to H. &C, or their assigns, paying no freight, it being the property of the owner of the vessel : On the.ar* rival of the vessel at Havanna, the consignees interlined the bill of lading with the words, u or a marketand directed the master to proceed to Laguira ; and while proceeding to Laguira± the vessel was captured, near that place, by a Yenezuelanprivateer, and carried into a port in the island of Margarita, and the vessel and cargo libelled in the Admiralty Court there, and the cargo condemned as prize, &c.
    In an action on the policy to recover for a total loss : Held, that the cargo was, and remained the property of the plaintiff, until its delivery at one of the ports mentioned ; that there was no delivery, or acceptance of it, at Havanna; and that the consignees there, in directing the master to proceed to L., acted as agents of the plaintiff, who continued to be, and was the owner of the cargo, at the time of its capture; and that, therefore, the warranty was complied with.
    That such a contract of sale is legal and valid, both by the municipal law of this country, and by the law of nations, and does not destroy the neutral character of the property.
    That the plaintiff was not bound to disclose to the defendants the fact and circumstances of the contract; for even if they were material, yet the insured is not obliged to communicate any fact, as to which there is a warranty, express or implied.
    THIS was an action on a policy of insurance, dated July 21, 1818, “ on the cargo of the brig George Washington, at an<i from New-York to Havanna, and at and from thence to Laguira and Porto Cabello, or either of them, at a pre- . ° mium of seven per cent., to return five and a quarter per - cent., if the risk ended at Havanna, without loss, or two per cent., if only one of the two last mentioned ports was used, and the risk should end without loss.” It was an open policy, and subscribed for the sum of twenty thousand ¿0Hars, and was in the usual printed form, with a written note or memorandum subjoined, that the property insured, was warranted by the assured to be American property.
    The, cause was tried at the New-York Sittings, the 16 th of December, 1820, before Mr. Justice Wan Ness. It was proved that the plaintiff was a native American citizen, and before anj at the time of effecting the insurance, was, and still is a merchant, residing in the city of New-York: that in July, 1818, a negotiation was entered into between the plaintiff and Moses E. Levy, a merchant, resident at g^ Thomas, but then in the city of New-York, about the plaintiff’s loading two vessels at New-YorJc, on his own account, and delivering their cargoes at Havanna, Laguira, or Porto Cabello, to be paid for by Levy, on their delivery. This negotiation resulted in an agreement, the terms of which were contained in two letters, each bearing date the 21st July, 1818. The first letter was from Levy to the plaintiff, as follows : “I am desirous of purchasing of you, deliverable in Havanna, Laguira, or Porto Cabello, a certain quantity of beef, pork, flour, peas, &tc. and will contract with you, on the following terms ; for a cargo of beef, <kc. to be shipped by the brig Warrior, and a cargo of flour, to be shipped by the brig George Washington, to Havanna or Laguira, I will pay you the amount of the costs and charges, including the cost of insurance which you shall pay thereon, and five per cent, advance on the amount of invoice, for your profit, together with one dollar per barrel, freight, if delivered at Havanna, or two dollars and fifty cents per barrel, if delivered at Laguira or Porto Cabello.” The answer of the plaintiff to this letter, was as follows : “ I have received your letter, and I agree to your proposal to deliver you the cargoes of the Warrior and the George Washington, at Havanna, or a port to windward, at the cost and charges, as paid, and five per cent, advance on amount of invoice, together with one dollar per barrel, freight; and in case that one or both should go to Laguira or Porto Cabello, an additional freight of one dollar and fifty cents per barrel; fifteen running days to be allowed for discharging the cargoes at Havanna, and twenty-five running days for all ports if they proceed to windward.” It appeared that Levy had made a contract with the intendant utHavanna, to supply the government at Havanna, Laguira, and Porto Cabello, with provisions like those of the cargo of the George Washington ; and for that purpose, he came to the United States, and made, among others, the contract with the plaintiff; but Levy did not communicate to the plaintiff, nor did the plaintiff know of the contract between him and the intendant of H. The George Washington, of which the plaintiff owned two thirds, and Noah Pratt the other third, was laden with a cargo of flour and pork, and the master, on the 5th of August, 1818, signed bills of lading, stating that the plaintiff had shipped, 8zc. the flour and pork, to be delivered at the port of Havanna, to Hernanclez and Chauviteau, or their assigns, paying no freight, the same being the property of the owner of the vessel. The invoice which accompanied the cargo, stated that it was shipped by the plaintiff, on board the brig George Washington, for Havanna, for account and risk of the shipper, a citizen of the United States, and consigned to Messrs. Hernandez and Chauviteau. It appeared that H. C. were the persons designated by Levy to be the consignees of the cargo at Havanna, and had his instructions relative ■to it, and to whom the cargo was to be delivered at Havanna, or was by them to be ordered to be delivered at Laguira or Porto Cabello. Before the vessel sailed, the plaintiff addressed a letter of instructions to the master, signed by F. G. Bull, his authorized agent for the purpose, in which he directed him to proceed to Havanna, and on his arrival there, address himself to Hernandez and Chauviteau, who would either receive the cargo, or if they thought best for his interest would direct the master to proceed to some other market to windward; and if the brig was discharged at Havanna, he was to advise with H. fy C. as" to procuring the best freight for Europe or the U. S. &c. The plaintiff, also, wrote a letter to Hernandez and Chauviteau, which was delivered to the master, in which he mentions the shipment to them of the cargo of flour and pork, amounting to 17,853 dollars ; and requesting them to receive and dispose of the same to the best advantage for his account; and that in case they thought it best for his interest, to send the vessel to any other market, that is, to windward, they might do so ; but in that case, they must calculate that the cost of the flour would be augmented one dollar and fifty cents for freight, and eight per cent, for insurance. That the shipment was made by the advice of their mutual friend Mr. Levy, and he hoped that it would prove satisfactory, and come to a good market. That in case the vessel discharged at the Havanna, they were requested to consult with the master, as to procuring a freight for Europe or the U. S. preferring the latter ; and to furnish the master with money sufficient to pay his expenses, and take his bill on the plaintiff for the amount. If the vessel discharged at H. and no freight could be procured for the U. S., and a cargo of molasses, or part of a cargo, could be purchased at eight reals per keg, they were requested to make the purchase, after taking what freight could be obtained, drawing on him for the amount; and if no freight could be procured, he was willing to go' as high as nine reals per keg for molasses. These letters were shown to Mr. Levy at the time they were written, and before they were delivered to the master.
    The G. W. arrived at Havanna about the 10th of September, 1818, where she remained about two days, without delivering any part of her cargo. The letter addressed by the plaintiff to H. fy C. was delivered to them; and they directed the captain to proceed with the vessel and cargo to Laguira. While at Havanna, one of the clerks of Hernandez and Chauviteau, in the presence of Captain Pratt, inserted in the body of the bill of lading, after the words “ port of Havanna,” the words “ or a marketand the following indorsement was made on the same bill of lading : “ Deliver the contents within to Mr. Gerardo Patrullo ; ordered the brig to proceed, not finding a favourable sale of the cargo at Havanna.—Havanna, 11th of September, 1818. Hernandez and Chauviteau.” Two letters were written at Havanna, by Hernandez and Chauviteau ? one addréssed to Gerardo Patrullo, at Laguira, and the other to Jose Beneto de Austria, at Porto Cabello, both dated the 10th of September, 1818. A translation of the first letter was as follows : “ The American brig George Washington, Captain Noah Pratt, has just arrived here with a cargo of flour and pork, consigned to us by Mr. James Be Wolf, jun. Being unwilling to detain her here, on account of the low prices of those articles, we send her to the Spanish Maine, in search of a better marketand in the event of her arrival at your port, permit us to recommend to you her captain, Mr. Noah Pratt, whom we have furnished with your address. If the flour and pork can be disposed.of, in any way, at your place, that circumstances will permit, it will not be for the interest of our friend, Mr. J. De Wolf, to let the vessel return to the United States.xn ballast. In case you should be under the necessity of taking bills in payment for the flour, in that event, we 0pen with you a credit in the sum of ten thousand hard dollars, to be invested in hides and other articles that may yield a freight; authorizing you to draw for the above sum 0f 10,000 hard dollars, on account of Mr. James He Wolf, jun. merchant, of New-York, which drafts will be diily honoured, and for the punctual payment whereof, we hold ourselves responsible.” “P. S. The credit for the 10,000 dollars will not be resorted to, unless no freight can be had for the brig.” Signed “ Hernandez and Chauviteau The other letter, addressed to Jose Beneto de Austria,, at Porto Cabello, was the same in substance. These letters " were delivered to Captain Pratt. The brig sailed from 'Havanna about the 12th of September, 1818, and on the 12th of October following, was captured, in sight of Laguira, by the schooner Brutus, a private armed vessel, of the republic of Venezuela, and carried into the port of Juan Griego, in the island of Margarita, where, she arrived on the 19th of October. The vessel and cargo were both libelled in the vice admiralty Court of that island ; and on the 24th of October, the cargo was condemned as good prize, and the vessel acquitted. On receiving information of the capture, the plaintiff abandoned the cargo to the defendants, and claimed a total loss.
    A verdict was taken for the plaintiff, for twenty-five thousand dollars, subject to adjustment, and to the opinion of the Court, on a case as above stated : and either party was to be at liberty to turn the case into a bill of exceptions or special verdict.
    
      Wells, for the plaintiff.
    1. Has the warranty of American property been complied with in this case t The contract between the plaintiff and Mr. Levy, was a valid contract at common law, and by the law of nations ; most certainly, in a state of peace. But it will be objected, that as war existed between Spain and her colonies, this is to be considered and treated as a contract in time of war. Sir William Scott, in the case of the Packet de Bilboa, (2 Rob. Adm. Rep. 133.) admits, that in time of peace, there would be nothing unlawful in the consignor taking upon himself the whole risk of the goods, until delivered to the consignee. But, “ in time of war,” he says, “ this cannot be permitted, for it would at once put an end to all captures at sea because it would be a contrivance resorted to, for the purpose of protecting property from capture, “ in all consignments from neutral ports to the enemy’s country, to the manifest defrauding of all rights of capture.” And because it may be used as an instrument of fraud, he comes to the very illogical conclusion, that it, therefore, is to be considered as an invalid contract in time of war; thus applying a rule of evidence to interpret a contract, in order to render it void, ]\fay; he puts the doctrine on a more fanciful^ ground; that as the consignee has a right to receive the cargo, the captor’ “ having all the rights that belong to his enemy,” has the right to take possession of it, and his possession is equivalent to a delivery to the consignee. If the captor, in succeeding to the rights, succeeded, also, to the duties of the consignée, this reasoning might be plausible; bnt when the' payment by the consignee is to depend on the delivery of thes goods to him, it is not easy to perceive how the possession by the captor, who does not pay, is equivalent to a delivery to the consignee. Indeed, the learned Judge is sensible of the fallacy óf such reasoning, and is obliged to suppose that the consignor has, in his bargain with the consignee, guarded against the loss by capture; or, if he' has not, that “ he has acted improvidently, and without caution.” Sir William Scott cites no authority whatever for this doctrine ; and it is, manifestly, not supported by principle. In the first place, it infers the illegality of a contract, from the mere circumstance that it may be fraudulent. To consider a shipment, under such circumstances, as prima facie evidence of a fraud on belligerent rights, would be going far enough; but to .pronounce a contract unlawful, because it may be abused for such a purpose, is unsound. A neutral may put his property, bona fide, on board of a belligerent vessel, or even an armed ship of the enemy, to be carried to the belligerent country; and it is not, therefore, to be. treated as enemy’s property; though this would be liable to great abuse and distrust. (The Nereid, 9 Cranch, 388. The Atalanta, 3 Wheat. Rep. 417.)
    In the next place, this doctrine is inconsistent with the other and better reasoning of Sir 'William Scotf, in the same case; where he says, “ The goods are sent at the risk of the shipper. If they had been lost, on whom would the loss have fallen, but on him ? What surer test of property call there be than this ? It is the true criterion of property, that if you are the person on whom the loss will fall, you are to. be considered as the proprietor.” If this be so, • where a: contract is made in time of peace, there is no authority or principle which will support the position, that such a contract is invalid in time of war. With the exception of blockaded ports, and articles contraband of war, the right of the neutral to make contracts with the belligerents, remains the same as in a state of peace. If his contract to deliver goods to an enemy, is fraudulent, in fact, and not at his own risk, but used as a mere cover to protect the property of a belligerent, it ought to share the fate of belligerent property. If, however, the contract is bona fide, it is an unlawful restraint on the rights of a neutral to pronounce it illegal.
    Again: It is said, the property is good prize, because, on -delivery, it would belong to the belligerent, and the captor •succeeds to his rights; that is, the right of receiving. But from whom does the captor receive it ? From the neutral. And whose property is it, until the capture ? The neutral’s. Its character can-only be changed by a delivery to the enemy. It is, then, captured as neutral property.
    In the case of the Atlas, (3 Rob. Adm. Rep. 299, 300. Sally-Griffiths, in the note,) it is again laid down as the doctrine of the Prize Court, that contracts of purchase effected by a belligerent, but the payment contingent, depending on the delivery of the property, which remains at the risk of the neutral, though lawful in peace, are unlawful in war, and if taken in transitu, the property is to be condemned as enemy’s property. Will this Court adopt such a doctrine, and apply it to a contract between two of our own citizens ?
    In the case of Ludlow v. Bowne and Eddy, (1 Johns. Rep. 1.) this Court reviewed the doctrine of the British Prize Court, and refused to adopt it; and the decision in that case has been the law of this state since February, 1806. The present Chancellor, though he differed from the other Judges, did not rest his opinion on the doctrine of Sir William Scott; but thought the agreement, in that case, fraudulent in fact.
    In the case of the Venus, (8 Cranch, 275.) Mr. Justice Washington says, “ To effect a change of property, as between seller and buyer, it is essential that there should be a contract of sale agreed upon by both parties j and if the •thing agreed to be sold, is to be sent by the vendor to the vendee, it is necessary to the perfection of the contract, that jt ghouJd be delivered to the purchaser or to his agent, which the master, to many purposes, is considered to be.” In the case of the Frances, (8 Cranch, 418.) he says, “When goods are sent upon the account and risk of the shipper, the delivery to the master is a delivery to him as agent of the shipper, not of the consignee.” In the case of the Jose Indiano, (1 Wheat. Rep. 208.) Mr. Justice Story says, “In general, the rules of the Prize Court, as to the vesting of property, are the same with those of the common law, by which the thing sold, after the completion of the contract, is properly at the risk of the purchaser.” But, until the vendor “has done some notorious act to devest himself of his title, or has parted with the possession, by an actual and unconditional delivery, for the use of the vendee, no property in the goods vests in him.”
    2. Then, was the plaintiff bound to communicate to the defendants the contract under which the cargo was shipped ? It is not necessary to communicate or disclose any things for which the insured undertake by a warranty, express or implied. (Marshall on Ins. 475. Shoolbred v. Nutt, S. C. Park, 229.) The representation is merged in the warranty. If the defendants, not relying on their warranty, had asked for information, and the plaintiff had communicated what was not true, that might be a ground of defence. The case of Haywood v. Rodgers, (4 East, 590.) very strongly illustrates the rule on this subject.
    jD. B. Ogden arid S. Jones, contra.
    1. The cargo, upon its shipment in New-York, became the property of Levy, by delivery, and was not, therefore, American property. L; was the agent of the Spanish government, and made the purchase, here. A delivery to him, was, in truth, a delivery • to the Spanish government. He was to bear the costs and charges attending it, and to pay for the insurance ; the cargo was at his risk. The letter of instructions to the captain does not forbid the delivery of the cargo, without payment; nor is he enjoined to demand payment of the purchase money. It is evident, that the contract of sale was consummated here, and that the payment for the cargo was not to depend on its delivery at the ports mentioned. In the case of Ludlow v. Bowne and Eddy, the vendee was to give a bill of sale with a guaranty, and until that was done, the goods were not to be delivered. Here, if the goods had never been delivered at Savanna, or Laguira, or Porto Cabello, they must have been regarded as belonging to Mr. Levy.
    
    Again : The vessel arrived at Savanna, and the agent of Mr. Levy altered the bill of lading, directing the delivery at Savanna, or a market, and ordering the master to proceed to Laguira or Porto Cabello; thus exercising complete ownership and control over the property. The master was instructed to deliver the property to the agent of Mr. Levy, not to the agent of the plaintiff. At and from Savanna, then, the property ceased to be American.
    
    The counsel for the plaintiff has criticised the doctrine of the Prize Court, as laid down by Sir William Scott. But it is a doctrine which, on examination, will be found sound and well founded 5 a doctrine, without which, no belligerent could maintain his rights,, or repel the secret attacks of war in disguise. Nothing can be added to the learned, luminous, and cogent reasoning of Sir William Scott on this subject. And this country, whenever it becomes belligerent, will be compelled to adopt it, as indispensable to the maintenance of its rights. In Ludlow v. Bowne and Eddy, the cases cited from the admiralty, were not touched by the Court, but considered as inapplicable to the state of facts presented in that case.
    2. Every fact which may vary or enhance the risk, ought to be; disclosed to the insurer. It is enough, that a belligerent Prize Court would have considered this contract, no matter whether rightfully or wrongfully, as affecting the neutrality of the property. If so, it must enhance the risk. The insured is bound to communicate every species of intelligence which he possesses, which may influence the insurer in deciding whether he will insure at all, or what premium he will ask for making the insurance. (Durell v. Bederley, 1 Holt's N. P. Rep. 283—287. notes.)
    Again: The facts in this case show, most clearly, that this was a cover for Spanish property, and that the plaintiff knew that he was covering belligerent property. The letter from the plaintiff to Hernandez and Chauviteau, was false throughout, if Mr. Levy was to be the owner of the cargo on its arrival at Havanna. The fact is, that Levy was an agent, sent out to purchase supplies for the Spanish government, and the plaintiff must be presumed to have known the fact.
    3. The property was condemned by a competent Court of Admiralty, for a breach of blockade; and, although the sentences of foreign Courts of Admiralty are not held to be conclusive in the Courts of this state, as to contracts between our own citizens, yet, [Here the counsel was stopped by the Chief Justice, who said, that the doctrine on that subject had been so long and so definitively settled, that it was not, now, to be questioned.]
    
      T. A. Emmet, in reply,
    said, that the case of Ludlow v. Bowne was quite decisive of the present case, .which is, indeed, stronger in favour of the plaintiff. The delivery of the goods was a condition precedent to the payment. They were put on board the plaintiff’s own vessel; and under the care of his own master; they were, therefore, in his own possession, and under his own control. The election to deliver or not, was to be made at Havanna, Laguira, or Porto Cabello.
    
    Again: The treaty between Spain and the United States, declares; that free ships make free goods; and it would naturally be supposed that the Spanish captors would adhere-to that article, until it had been otherwise declared. Even according to the reasoning of Sir William Scott, there can be no fraud, unless the party knew that he was dealing with An enemy, and intended to cover his property. Now, the case states that the plaintiff did not know of the contract between L. and the Spanish government at H. Suppose the • cargo had been lost by perils of the sea, who would have borne the loss ? Surely, it must have fallen on the plaintiff, or his insurers. The cause or mode ofloss can make no difference in the construction of the warranty. If the property had been warranted neutral, then the Court must have looked to the law of nations, to ascertain what constituted its neutral character. But when the warranty is that it is American 
      property, they must look to the municipal law of our own country, to determine its American character. A warranty is to be construed according to the plain commercial import of the terms, among mercantile men. (Marshall on Insurance, 347 a.)
    
    As to the alleged concealment, the answer is, that it is a matter covered by the warranty. A concealment, to vitiate the policy, must be fraudulent, and the fact of its being fraudulent must be found by a jury. (Duguet v. Rhinelander, 1 Caines’ Cases in Error, 27. S. C. 2 Johns. Cas. 476. Hallet v. Jenks, 1 Caines’ Cases in Error, 43—47.) The jury have not passed upon the fact, and the Court cannot draw the conclusion. But as Levy was a Dane, and his rights precisely the same, in regard to belligerents, as those of the plaintiff, it could not have varied the risk, or the premium, had it been stated that he was the owner. (Le Roy v. The United Insurance Co. 7 Johns. Rep. 343.)
    
      
       The sentence of condemnation (which was translated,) is dated at ViUa, del Norte, the 24th day of October, 1818, and in the eighth year of the republic of Venezuela, and declared as follows: “That having carefully examined the documents which Noah Pratt, captain of the said vessel, has exhibited, it is found, that she, and the cargo, came from New-Yorkt and belong to James De Wolf, jr. who consigned the same to Messrs. Hernandez and, Chauviteau, in the island of Havanna; but observing, on the other side, that from thence she was despatched, for the account and risk of those persons, to guira, the said cargo being consigned to Don Gerardo Patrullo, or, to Pprio Cabello, to Don Beneto Austria, asproperty belonging to Hernandez and Chauviteau, as is proved by the indorsement on the back of the bill of .lading, and the words c dr a market,’ which are surreptitiously inserted ; by the letters, in which appears a bill of exchange of ten thousand dollars, upon Patrullo and Austria, for her return, and a special recommendation respecting the,ca?go, all of them being acts without the orders, and done when out of the reach of James De Wolf jr. by Hernandez and Chauviteau, and by the clerk, of the house, as the said Captain Pratt declares, when the said bill of lading >vas produced to him ; all which is corroborated by the deposition of Henry Wilson, chief mate of the said George Washington ; so that on all sides the truth is discovered, that the cargo that she had on board was the property of James De Wolf jr., until she arrived at the-port of Havanna, and then commenced to be that of Messrs. Hernandez and Chauviteau, by whose, orders, and not by those of James De Wolf it xvas exposed to the perils of the sea, and otherwise, as far as Laguira9 or Porto Cabello, no instructions appearing for the purpose, from the former owner, or consignor; nor does his signature appear, but only that of another person, whom Noah Pratt asserts to be employed in the house of De Wolf and to have signed, on account of his absence; but it may be very well collected that this is a fiction of the clerk of Demandes and Chauviteau, to give to the Spanish property the appearance of American property : Wherefore, this Court being persuaded, that as well fov the reasons stated, as for having broken the law of blockade of introducing into the ports prohibited articles, the condemnation of the cargo will not be an infringement or violation of the rights of the American nation, respected by the chiefs of the Republic of Venezuela: the Court determine and declare as a good prize, the cargo of flour and meal which the G. Wwas carrying to the enemy’s ports; liberates the vessel, &c,; that on payment of Corresponding duties, taxed costs, and the freight to the captured captain', the said cargo be delivered to the captor for his own use,” . * - •
    
   Spencer, Ch. J.

delivered the opinion of the Court.

This case gives rise to three questions; 1st. Was the delivery of the cargo at one of the three ports, Havanna, Laguira, or Porto Cabello, at the election of Levy, a condition precedent to the plaintiff’s right to demand payment of the stipulated price, according to the contract; or was the sale consummated here ? 2d. Was the transaction a cover, and did the plaintiff know that the cargo was for the Spanish government? 3d. Was it necessary for the plaintiff to disclose to the defendants the circumstances under which the property was shipped, even if the risk was enhanced ?

The contract on the part of the plaintiff is to deliver the cargo at one of the designated places; and it 'is perfectly clear that the election at which of the ports Levy would receive it, was in him. This right of election, to receive the cargo at Laguira or Porto Cabello, might be made and signified to the plaintiff at Havanna, and so it was understood by the parties to the contract. The policy speaks the same language. The cargo is insured from JVew- York to Havanna, and at and from thence to Laguira and Porto Cabello, or either of them, at a premium of seven per cent., to return five and a quarter per cent.., if the risk ended at Havanna without loss; thus making Havanna a port to which the vessel was to go, at all events, and leaving it op- ' tional with the assured to proceed to one or both of the other ports. The contract is to purchase and sell, deliver-' able in Havanna, Laguira or Porto Cabello. The risk of delivery rests on the vendor, and the purchase is incomplete, unless the cargo be delivered at one of the appointed places, to be elected by the vendee. As an indemnity for the risk to be incurred by the vendor, he wasat liberty to procure . insurance, which, in the event of the delivery, was to constitute part of the price of the cargo, and in the event of a loss, by the perils insured against, the vendor would find his indemnity in the insurance. Until, then, the plaintiff had performed his part of the contract, by delivering the-cargo at one of the designated ports to be elected by Levy, the property never became vested in Levy, and the plaintiff never could recover the price, and consequently it remained the plaintiff’s property. Such a contract, Sir William Scott, in the case of the Packet de Bilboa, (2 Robinson, 111.) considered lawful in time of peace, but as illegal in time of war, and as a fraud on the belligerent, because it went to protect property in transitu to the enemy, and as it deprived the belligerent of his right of capture.

It was urged, on the argument, that the cargo was received by the consignees at the Havanna, and that thenceforth the property ceased to be the plaintiff’s. The vessel merely reported herself there to Hernandez and Chauviteau, to whom she was addressed; she remained there but two days, and never broke bulk; and then, by their directions, as agents to Levy, proceeded to Laguira. Nothing like an acceptance of the cargo at Havanna is perceived in these acts; but, on the contrary, an election not to receive the cargo there. It has also been insisted, that as the cargo was consigned to Hernandez and Chauviteau, and was not to be sold, what they did, and particularly the alteration in the bill of lading, was equivalent to an acceptance. It was shown, most satisfactorily, by the late Ch. J. Thompson, in the case of Ludlow v. Bowne and Eddy, (1 Johns. Rep. 1.) that the consignment was open to explanation, whether made to the consignees, on the account and risk of the consignor, or on their account and risk. Hernandez and Chauviteau were also the agents of the plaintiff, in the event that they did not, as the agents of Levy, accept the cargo at Havanna; and, as such agents, they had a right, after electing not to accept the cargo there, with the assent of the captain, to alter the bill of lading in the manner they did, without compromitting the rights of either party. It was a necessary and an innocent act.

We come back to the question, whether the contract between the plaintiff, an American citizen, and Levy, a resident merchant at St. Thomas, was so far unlawful, as to subject the cargo to capture as Spanish property. The case of Ludlow v. Bowne and Eddy decides this case; and it is impossible to distinguish the two cases. In both, the property insured was warranted to be American property. There, the cargo was shipped by the plaintiffs under an agreement with merchants in France, whereby' the plaintiffs were to deliver the goods at St. Vallery, for which they were to be allowed eight per cent, commissions, taking upon themselves all risk, expressly including a premium for sea risks as well as war risks; the consignees to pay freight on the delivei’y, and also for the amount of cargo, in bills on London, guarantied by a commercial house in London. The goods were captured in transitu, by the British, and condemned as French property. This Court decided, that the goods remained the property of the consignors, and that the warranty was complied with. A majority of the Court were of opinion, that the goods remained the property of the plaintiffs, until their delivery at St. Fallery. In that case, we held, that there was a right to withhold the delivery of the goods, until payment had been made according to the contract; and here, by the express stipulation of the parties, the plaintiff can have no right to demand payment, until he has performed the condition precedent,- the delivery of the goods according to the contract; so that, in both cases, there was no change of property.

The decisions of Sir William Scott, in the Admiralty Court, were then pressed upon our attention; but we regarded them as the result of political expediency, and as evincing a determination in the British councils, to destroy all commerce with their enemy, rather than as rules of international law. We adopted the broad and just principle, that a neutral had a right, and was justified by the law of nations, in supplying belligerents, with the sole exception of contraband goods, and going to a blockaded port. How can the existence of a state of war between Spain and her colonies, not then recognised by the rest of the world as independent states, or how can the existence of war between Spain and Venezuela, under any circumstances, affect such a contract, or render it unlawful ? The warranty in the policy, that the property was American, means that it was so by the law of nations. If the contract would be a legal one in time of peace, which Sir William Scott expressly admits, and if the property would be deemed the plaintiff’s, until actual delivery at one of the elected ports, what would vitiate this contract, or make the property the vendee’s before the performance of the condition precedent, according to the law of nations ? Certainly not because there was a war between Spain and Venezuela; for I trust that this country never will permit the great principle, that a neutral may carry on commerce with a belligerent during war, as well as in peace, with the exceptions already mentioned, to be infringed or abandoned. In the case referred to, we meant to dissent from the principles advanced by Sir William Scott, which go to consider all property bound to an enemy’s country as belonging to the enemy, and as exposed rightfully to capture and condemnation. We meant to consider that rule as an arbitrary one, forming no part of the international code, and as entirely destructive of neutral rights. Subsequent reflection has served to strengthen the opinion 1 held in that case ; and it has led to a conviction that the doctrines advanced by that eminent Judge, in the British Admiralty, were the result of power forgetting right, and the offspring of state policy, created for the occasion.

As to the alleged concealment, or non-disclosure by the plaintiff, that the cargo was intended by Levy for the Spanish government, the case definitively settles the point; for it is admitted by the defendants, that the plaintiff did not know that Levy had contracted with the Intend ant at, Havanna to supply the Spanish government with flour ana provisions; and that he did not know that the cargo, on its arrival at its port of final destination, would have been applied by Levy to the performance of his contract.

But it is urged, that the facts and circumstances of the contract should have been disclosed, as the risk was materially enhanced. If it be conceded, that those circumstances did enhance the risk, the answer is decisive, that a party need not communicate any thing with respect to a fact, in regard to which there is an express or implied warranty. As to the conclusiveness of the sentence of condemnation, we are not at liberty to question the doctrine on that point, which has been definitively settled in the Court for the Correction of Errors, and has been so long acquiesced in. There must be judgment for the plaintiff, according to the stipulation in the case.

Judgment for the plaintiff.  