Hopner vs. Appleby. vading its own neutrality. Even in cases of the violation of neutral jurisdiction the tribunals of the injured country content themselves with a simple restitution of the property brought within its territory, and do not interfere to give damages, or inquire into the manner, in which the belligerent may have exercised his power, however harshly, upon the conquered. Strictly speaking, there can be no such thing as a marine tort between belligerents; and at all events, neutral nations have no authority to entertain any judicial cognizance of them.2 They must be redressed, if at all, by the sovereign, to whom, as subjects bearing his commission, the captors are responsible for every abuse of their power. This Court, upon these principles, is bound to disclaim any right to control the captors in the management and sale of their prizes. The capture was lawfully made in war between belligerents, recognized by our own government. It must be deemed rightful. Whether the property was ever carried into a proper port for adjudication or not, or properly condemned or not, and whether the captors have been guilty of a fraudulent breach of their duty to their own sovereign or not, are questions, upon which we have not the slightest right to pass judgment. Spain has no right to complain of any extent of the exercise of belligerent power on the part of her enemy. The captors had a plenary dominion over the property by the capture, and mignt, so far as she was concerned, have burnt it, or destroyed it, or disposed of it in any other manner, which they pleased. If, indeed, by recapture or otherwise it had again come within her reach, it would have been a very different question, whether, under the law of postlininy, she would have acknowledged the validity of the title of a neutral vendee, acquired by a fraudulent effort to escape from her reach, when the property had never 2 See La Amistad de Rues, 5 Wheaton R. 385. 3 See 2 Wheaton R. Appendix, p. 40.-The Flad Oyen, 1 Rob. R. 134. -The Cosmopolite, 3 Rob. 333. Hopner vs. Appleby. been subjected to condemnation by a regular prize tribunal. If, under such circumstances, her Courts should have chosen to restore it to the original owners, and dispossess the neutral vendee, he at least would have had no just ground of complaint, for he took his title with his eyes open, and knew and assisted in the device. Nor could he have had any just right of compensation from the captors, because he bought the title with all its infirmities, and if there was any fraud, it was not upon him, or his rights acquired by the purchase. In general, They may, But Was there, then, in the present case any violation of our neutrality? It has not been asserted, that captors violate our neutrality by the mere sale of their prizes in our ports. neutral nations allow them an asylum in their ports. indeed, prohibit their entry into their ports, or the sale of their prizes there, from motives of policy or public convenience. unless they do so, where is the principle of the law of nations, which prohibits such a sale? I cannot find any such principle laid down in the most approved elementary writers, or justified by the general practice of nations. It is one of those points, which every neutral nation arranges according to its own sound discretion and policy. It is free to refuse, or grant it. If there be no prohibition, the right to sell arises silently from the general operations of commercial intercourse. A bona fide possessor of property may traffic with it in every country, where the sovereign does not choose to establish a different rule. The permission results necessarily by implication from the omission of any interdicting expression of the sovereign's pleasure. Unless I have greatly misconceived the general result of the doctrines advanced on this subject by jurists of high character, that is their settled conclusion. I am aware, that at an early period, in one of the 4 See Grotius, b. 3, ch. 9, § 14, and Barbeyrac's note.—Vattel, lib. 3, ch. 7, §132.-Bynk. Ques. Pub. Jur. ch. 15, (Duponceau edit. p. 113, 120.) -D'Abreu Traité sur les Prises, Pt. 2, ch. 2, § 3, 5, 6, 7, and Bonnemant's Note, ibid. and Pt. 1, ch. 3, § 2.-Valin. Traité des Prises, ch. Hopner vs. Appleby. Circuit Courts, a modification of this doctrine was insisted on, viz. that the permission of the government must be express, and could not be implied. That modification has not, to my knowledge, received elsewhere any recognition. I feel myself constrained to doubt, whether it can be supported upon the footing of the law of nations. Perfect neutrality is entirely consistent with allowing the sale of prizes in our ports in the most ample manner, if it be equally granted to all the belligerents. The only just ground of complaint in such cases would be, that, what is allowed to the one, is denied to the other. Many acts of a far more direct operation upon the success of war are not deemed unneutral, where they are granted with sincerity to all the belligerents; for equality, in such cases, is not only in a liberal sense equity, but is neutrality. Permission to sell prizes in our ports may sometimes involve the dangers of fraud, and even of piracy; but mere danger of such consequences does not establish the fact, that a prohibition is created by the law of nations, or that a positive act of the government is required to remove it. If, then, the sale of prizes in a neutral port is not prohibited by the law of nations, what is there in the present case to taint the present transaction with illegality? No fraud has been practised upon our government or our laws. The fraud, if any, was a fraud either to evade the regulations of prize of the republic of Colombia, which we are not called upon to enforce, or the chances of recapture by Spanish cruisers, which we are as little called upon to aid. The wreck of the prize property did not disturb the operation of our revenue laws, or infract our police. The duties have been duly paid; and the custom-house regulations have been sufficiently obeyed. An American citizen 7, and particularly § 24; and 2 Valin. Comm. Ordon. de la Marine, Art. 14 and 15, p. 272, 273, &c.—Wheaton on Capt. ch. 9, p. 260, § 6.— Lee on Captures, ch. 16, p. 193.-Findlay vs. The William (1 Peters' Adm. R. 12, 21.)-Consul of Spain vs. Consul of Great Britain, Bees' Adm. R. 263. Hopner vs. Appleby. now calls upon the Court to enable him to pocket the proceeds of prize, which he has purchased with a full knowledge of all the circumstances, and a full participation in all the intermediate acts, not because he has sustained any loss, or is willing to restore those proceeds, but because he has aided the captors in a fraud, which touches the sovereign rights of Colombia, or Spain, or both. It appears to me, that an American Court has no authority to intermeddle in such controversies. The title to the property was regularly acquired by the captors; they have sold that property to the defendant; he has had possession of the proceeds. There is no moral wrong in compelling him to pay the consideration of the purchase. Our judgment will not touch in the slightest degree the authority of either sovereign to seek his own redress for any wrong done to him in these proceedings. The law of nations has not pronounced a title so acquired to be an absolute nullity; and it has been long settled, that our tribunals do not sit to enforce the mere municipal regulations, or vindicate the injured sovereignty, of foreign nations. For aught that we know, a proper sentence of condemnation may already have passed on this property. It may hereafter be passed by the prize courts of the government of Colombia; for a sale of prizes, however irregular before condemnation, is such a proceeding as does not oust the prize jurisdiction; but the proper court may still in its discretion interfere, and confirm the title by its definitive sentence of condemnation.5 It has been said, that our law upon general principles prohibits a citizen from colluding with foreigners to procure a wreck. If by this is meant a wreck, which is a fraud upon the laws or rights of our government, or upon the private rights or property of our citizens, the doctrine may be admitted; but its application to the facts of the present case is not perceived. Here, the captors 5 See The Eole, 6 Rob. 220, 224.-The Dame Cecile, 6 Rob. 257, 260.-The Falcon, 6 Rob. 194, 200.—The Arabella and Madeira, 2 Gallis. R. 368. Hopner vs. Appleby. were the owners and possessors of the property; and it will scarcely be pretended, that a wreck, procured by the connivance and consent of the owner, and not intended to cheat or defraud any third person, but merely to escape belligerent risks, falls exactly under the like considerations. Upon the whole, my opinion is, that the verdict is right, and that judgment ought to pass against the defendant. YATES & MC INTIRE US. GEORGE CURTIS. Wherever the principal can trace his property in the hands of his factor or agent, and distinguish it from the mass of the property of the latter, he is entitled to recover it from the agent, or in case of his failure, from his assignees. ASSUMPSIT for money had and received. Plea, the general issue. At the trial it appeared, that J. B. Wood had been employed by the plaintiffs to sell and dispose of large numbers of lottery tickets in different lotteries on their own account, he receiving a commission therefor. The accounts kept by the parties debited Wood with all the tickets received, and credited him with all tickets returned to the plaintiffs; and credited them with the balance struck, deducting commissions. Some alterations were latterly made by the parties in their form of keeping the accounts for their own convenience; but the substance of the contract between them remained unaltered. Wood failed in business on the 8th of May 1828, and assigned his property to the defendant for the benefit of his creditors. Considerable sums were outstanding, due from third persons for the lottery tickets so sold, at the time of the failure, some part of which had been since received by the assignee; and for the money so received, the present suit was brought. It appeared, that on the face of some of the tickets |