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WILLING v. U S - 4 U.S. 374 (1804)

U.S. Supreme Court

WILLING v. U S, 4 U.S. 374 (1804)

4 U.S. 374 (Dall.)

Willing et al. Plaintiffs in Error
The United States.

Circuit Court, Pennsylvania District.

April Term, 1804

ERROR from the District Court of Pennsylvania. Upon the record it appeared, that this was an action upon a bond, dated the 16th of November 1802, given by Willings and Francis and J. Miller, in the penal sum of 15, 442 dollars, to secure the payment of 7720 41/100 dollars, being the amount of one half of the duties payable on the cargo of the ship Missouri, on the 16th of May 1803. The defendants pleaded, 1st. That the duties on the goods in question amounted only to 14,036 73/100 dollars, on account of one half of which (7018 36/100 dollars) the bond was given. And, 2d. Payment. The plaintiff replied, 1st. That the ship was an American registered vessel, owned by the defendants, when she sailed from Philadelphia for Canton, on the 1st of December 1800; that after her departure she was in part sold to Jacob G. Koch and others, on the 12th of February 1801; that on making the sale the ship was not registered anew, nor was there any bill of sale executed reciting her register; that the goods were imported into the port of Philadelphia subsequent to the sale, on the 16th of November 1802; that the amount of the duties was 15,440 82/100 dollars, for one half of which, payable in six months, the bond was given. 2d. Non solverunt.

The defendants rejoined, That they admit the sale to Koch and others, and the importation of the goods after such sale; but they

Page 4 U.S. 374, 375

aver, that the ship was at sea at the time of the sale, having her register on board, and that it was not, therefore, in the power of the defendants to deliver it up at the time of the sale; that on her arrival, the 15th of November, the defendants did execute a bill of sale to Koch and others, reciting the register, and the captain delivered up the register to the collector, whereupon the ship was registered anew, as the joint property of the defendants and Koch and others; that, on the 7th of January 1803, Koch and others re-sold to the defendants, and executed a bill of sale reciting the register, last mentioned; and that thereupon the ship was registered anew as the property of the defendants, whereby she continued an American registered vessel, not liable to foreign duties, and that the domestic duties only amounted to 14,036 73/100 dollars, &c.

The plaintiffs sur-rejoined, That they admit the ship was at sea when she was in part sold to Koch and others; buy aver, that she was not registered anew, nor was there a bill of sale, reciting the register, at the time of the sale, nor at the time of her arrival. That they, also, admit that the captain delivered to the collector, the register of the ship at the time of his arrival; but they insist that it was long after she had been in part sold, without being registered anew, &c.; that the registry of the ship, on the 22d of December 1802, in the name of Koch and others and the defendants, was made after the re-sale by Koch and others to the defendants, when Koch and others had ceased to own any part; and thay they admit that Koch and others, having previously re-sold, did, on the 24th of January 1803, deliver up the register in their names, and the ship was then registered anew, as the exclusive property of the defendants. But they insist, that at the time of the actual re-sale by Koch and others ( 15th November 1801) she was not registered anew, nor did they then execute a bill of sale reciting the register; that the registry of the 24th of January 1803, was made, under colour of a bill of sale executed by Koch and others to the defendants, long after the re-sale, and they had ceased to have any interest in the ship; and that at the time of the sale in part to Koch and others, of the re-sale by them to the defendants, of the arrival of the ship in the port of Philadelphia, and of her entry, she had ceased to be deemed a ship of the United States. The defendants demurred, generally, to the sur-rejoinder; and the plaintiffs joined in demurrer.

The general question, upon the demurrer; was, whether a registered vessel of the United States, being sold, in part, to resident citizens of the United States, while she was at sea, without a bill of sale reciting the register, and without being then registered anew, was liable, with her cargo, to the payment of foreign, or only to the payment of domestic, tonnage and duties, on her return to a port of the United States? And the argument rested chiefly upon the terms and meaning of [4 U.S. 374, 376]

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