by Messrs. Craig and Nicoll, for the parties named, still their not consigning it to them and delivering to them the proper bill of lading passing the possession, left the property under the dominion of Craig and Nicoll, and as such, liable to capture.  The property attempted to be covered by the Messrs. Montgomery, is shipped by Montgomery Bros. of New York, and consigned to Montgomery Bros., in Belfast; and the title to the property, so far as appears in the bill of lading, is in the latter house, or in the branch house in New York.  Further, the mere formal papers of a ship and cargo prove nothing, unless properly verified, and in this case the master of the ship, although a part owner of the ship, whose duty it was upon taking in a cargo in time of war, to be informed of all the circumstances attending it, and connected with the ownership, knew nothing, except what he learned from the face of the papers.  These certificates, therefore, were pronounced a fraud, and the cargo as well as the ship, condemned. 3d Phillimore 610-12 to the effect, that if the goods are going for account of the shipper, or subject to his order or control (as in this case), the property is not divested in transitu.  The goods shipped by Craig and Nicoll, were consigned to their order, as has been seen.

As to the Montgomery’s, see 3rd Phillimore 605, to the effect that if a person be a partner in a house of trade in an enemy’s country, he is, as to the concerns and trade of that house, deemed an enemy, and his share is liable to confiscation as such, notwithstanding his own residence is in a neutral country.  Further, the property consigned to Montgomery Bros., even admitting the Belfast house not to be a partner in the New York house, is liable to the same objection, as in the case of Craig and Nicoll; since, although the property is described as belonging to a party in Sligo, there is no bill of lading among the papers authorizing that party to demand the possession.  The property is not divested, therefore, in transitu.

3rd Phillimore, 599, to the effect, that “further proof” is always necessary when the master cannot swear to the ownership of the property (as in this case).  And as I cannot send my prizes in for adjudication, I must of necessity condemn in all cases where “further proof” is necessary, since the granting of “further proof” proceeds on the presumption that the neutrality of the cargo is not sufficiently established; and where the neutrality of the property does not fully appear from the ship’s papers and the master’s deposition, I had the right to act upon the presumption of enemy’s property.

By midnight the Lafayette showed only a dim glare on the distant horizon, but the event formed a topic of discussion for the next two days, more especially as from the newspapers found on board it was ascertained that news of the captures on the banks of Newfoundland had already made its way to the United States, and that the Yankee cruisers were, therefore, probably by that time in full pursuit.