rigorous examination. It is, certainly, always advisable SHIRRAS fairly and plainly to state the truth. & OTHERS

But if, upon investigation, the real transaction shall CAIG & appear to be fair, though somewhat variant from that MITCHEL. which is described, it would seem to be unjust and unprecedented to deprive the person claiming under the deed, of his real equitable rights, unless it be in favor of a person who has been, in fact, injured and deceived by the misrepresentation.

That cannot have happened in the present case.

There is the less reason for imputing blame to the mortgagees, in this case, because the deed was prepared by the mortgagor himself, and executed without being inspected by them, so far as appears in the case.

It is, then, the opinion of the Court that the Plaintiffs, Shirras and others, have a just title, under their mortgage deed, to subject one moiety of the lot, or parcel of ground, commonly known by the name of Gairdner's Wharf, to the payment of the debts still remaining due to them, which were either due at the date of the mortgage, or were afterwards contracted upon its faith, either by advances actually made or incurred prior to the receipt of actual notice of the subsequent title of the Defendants, Caig and Mitchel; and that the decree of the Circuit Court of Georgia, so far as it is inconsistent with this opinion, ought to be reversed.

The following is the decree of this Court.

This cause came on to be heard on the transcript of the record, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that the deed of mortgage in the proceedings mentioned, and dated on the 1st of December, 1801, is, in law, a valid conveyance of one moiety of that lot of land, houses and Wharves in the City of Savannah, which was generally known by the name of Gairdner's Wharf, being the parcel of ground lying between the river and the street, and that the mortgagees in the said deed mentioned, are entitled to foreclose the equity of redemption in the said mortgaged property, and to obtain a sale

2.

SHIRRAS thereof, and to apply the proceeds of the said sale to the & OTHERS payment of what remains unsatisfied of their respective debts, which were either due at the date of the mortCAIG & gage, or have been since contracted, either on account MITCHEL. of monies advanced, or liabilities incurred prior to their receiving actual notice of the title of the Defendants, John Caig, and Robert Mitchel. And the decree of the Circuit Court for the District of Georgia, so far as it is inconsistent with this opinion, is reversed and annulled, and in all other things is affirmed; and the cause is remanded to the said Circuit Court for the District of Georgia, that further proceedings may be had therein according to equity.

The Sd section of the act of

congress of the 9th of January, 1808, which

ment of goods

did not include

the case of a

vessel lading in port by means of river craft, &c.

Absent....Washington, justice.

ERROR to the Circuit Court for the district of Rhode Island.

The schooner Paulina and cargo were seized and liprohibited the belled by the collector of the port of Newport, alleging trans-ship- that the cargo was laden on board, within the district of from one ves- Newport, between the 1st of June and the last of July sel to another, in the year 1808, in the night season, without a permit from the collector, and without the inspection of the proper revenue officers, and contrary to the 2d section of the "act of Congress, entitled "An act in addition to the "act entitled an act laying an embargo on all ships and "vessels in the ports and harbors of the United States, and congress of the "the several acts supplementary thereto, and for other pur25th of April, poses," passed the 25th of April, 1808; and contrary to require a per- the 50th section of the act to regulate the collection of duties, mit to lade any &c. passed the 2d of March, 1799. In the District Court vessel, nor au- the vessel and cargo were both ordered to be restored.

The 2d sect. of the act of

1808, did not

thorize the.

forfeiture and condemnation

of the vessel or

Upon the appeal in the Circuit Court, the Libellant cargo, for lad- had leave to amend his libel, by stating that on the wa

ters of Warwick bay, in the district of Rhode Island, at SCHOONER a place called the Fulling Mill in Warwick, and about PAULINA'S 120 fathoms from the landing, at sundry times, between

the 1st of June and the last of July in the year 1808, v. the articles constituting the cargo of the Paulina, were U.STATES. trans-shiped from a small sloop called the May-flower into the schooner Paulina, without the intervention of ing without the inspection of a any other water craft, or of any intermediate landing, revenue offiwith intent to be transported without the United States, cer; the only contrary to the 3d section of the act of Congress, enti- penalty for tled "An act supplementary to the act entitled an act lay-ing the denial ing an embargo on all ships and vessels in the ports and of a clearance. harbors of the United States," passed on the 9th of January, 1808, whereby the said cargo is forfeited, &c.

The words of the 2d section of the act of 25th of April, 1808, vol. 9, p. 146, are “That during the continuance of the act "laying an embargo on all ships and vessels in the "ports and harbors of the United States, and of the several "acts supplementary thereto, no ship or vessel of any "description whatever, other than those described in "the next preceding section, and wherever bound, shall receive a clearance, unless the lading shall be made hereafter under the inspection of the proper revenue "officers, subject to the same restrictions, regulations, "penalties and forfeitures, as are provided by law for "the inspection of goods, wares and merchandize im"ported into the United States, upon which duties are

imposed, any law to the contrary notwithstanding.”

By the 50th section of the act of 2d of March, 1799, vol. 4, p. 360, to regulate the collection of duties, &c. it is enacted that no goods, wares or merchandize, "brought in any ship or vessel from any foreign port " or place, shall be unladen or delivered from such ship " or vessel, within the United States, but in open day, "that is to say, between the rising and setting of the "sun, except by special license from the collector of "the port, and naval officer of the same, (where there

is one) for that purpose, nor at any time without a "permit from the collector, and naval officer, (if any) for such unlading or delivery; and if any goods, wares or merchandize shall be unladen or delivered ❝ from any such ship or vessel, contrary to the directions aforesaid, or any of them, the master" &c.

such lading be

v.

U. STATES.

SCHOONER "shall forfeit and pay, each and severally, the sum of PAULINA'S 6. 400 dollars for each offence, and shall be disabled CARGO ❝from holding any office of trust or profit for a term "not exceeding seven years," "and all goods, wares " or merchandize, so unladen or delivered, shall become "forfeited, and may be seized by any of the officers of "the customs;" and if the value shall exceed 400 dollars, the vessel, &c. shall be subject to like forfeiture and seizure.

By the 3d section of the act of the 9th of January, 1808, (vol. 9, p. 11) it is enacted, "That if any ship or "vessel shall, during the continuance of the act to which "this is a supplement, depart from any port of the "United States without a clearance or permit, or if any "ship or vessel shall, contrary to the provisions of this "act or of the act to which this is a supplement, pro❝ceed to a foreign port or place, or trade with or put "on board of any other ship or vessel, any goods, wares "or merchandize, of foreign or domestic growth or "manufacture, such ships or vessels, goods, wares and “merchandize, shall be wholly forfeited ;"" and the mas❝ter or commander of such ship or vessel, as well as "all other persons who shall knowingly be concerned in such prohibited foreign voyage, shall each respectively forfeit and pay a sum not exceeding 20,000 dol"lars," &c.

The Circuit Court affirmed the sentence of the District Court so far as it decreed the restitution of the vessel, but reversed it so far as it decreed restitution of the cargo, which the Circuit Court condemned.

To reverse this sentence of condemnation the present writ of error was sued out by Simeon Jones, the owner and Claimant of the vessel and cargo.

On the 20th of February, 1810, a dedimus was issued from the Supreme Court to take depositions in Rhode Island, which was executed and returned on the 14th of March.

The material facts appearing upon these depositions were that the former owners of the Paulina, being prevented by the embargo from using their vessel, in order

T.

to save expence, took her into Warwick bay, which SCHOONER was near the residence of one of the owners. Shortly PAULINA'S afterwards they sold her to the present Claimant, Jones, CARGO who caused her to be publicly, and in open day, laden by means of the sloop May-flower, which was a little U.STATES. vessel of 15 tons burthen, whose usual business it was to carry goods from Providence to Warwick and East Greenwich. That he thus caused her to be laden in the expectation that the embargo would be very shortly taken off. There was also some evidence tending to excite suspicion that the intention was to evade the embargo.

PITKIN, for the Plaintiff in Error.

Neither this vessel nor cargo were liable to forfeiture under either of the laws mentioned in the libel.

1. As to the 2d section of the act of the 25th of April, 1808, (vol. 9, p. 146.) It has been uniformly decided in all the Circuit Courts, that this section does not impose a forfeiture of either the vessel or cargo. In the present case Judge Cushing condemned the cargo, not under this section, but under the 3d section of the act of the 9th of January, 1808, which prohibits the transshipment. The only penalty for lading the vessel without the inspection of a revenue officer, is the refusal of a clearance. The 2d section of the act of the 25th of April does not refer to the 50th section of the collection law, but to the 53d, 54th and 55th sections, which apply to the duties of inspectors, and provide for their due execution by penalties, but they contain no regulation whereby either the vessel or cargo can be forfeited. The construction contended for by the government is contrary to the spirit of the embargo system. Nothing had been before said respecting the lading of a vessel. She might lade as she pleased, and might go to sea upon giving bond, &c. This act is the first which regulates the lading.

The object of the embargo was to prevent foreign voyages. The provision that the lading should be under the inspection of a revenue officer, was intended to enable the collector to judge from the nature of the cargo whether it was intended for a foreign voyage; and