1817.

Otis

V.

Walter.

JUDGMENT. This cause came on to be heard on the transcript of the record of the circuit court of the United States for the county of Washington, and was argued by counsel. All which being seen and considered, it is the opinion of this court that there is error in the proceedings of the said circuit court, in this, that the said court refused to instruct the jury on the application of the counsel for the plaintiff, that on the facts given in evidence to them, if believed, the plaintiff, was entitled to recover in that action; wherefore it is considered by this court, that the said judgment of the said circuit court be reversed and annulled, and that the cause be remanded to the said court to be proceeded in according to law.

(COMMON LAW.)

OTIS V. WALTER.

In seizures under the embargo laws, the law itself is a sufficient justification to the seizing officer where the discharge of duty is the real motive, and not the pretext for detention, and it is not necessary to show probable cause.

But the embargo act of the 25th of April, 1808, related only to vessels ostensibly bound to some port in the United States, and a seizure after the termination of the voyage is unjustifiable; and no further detention of the cargo is lawful than what is necessarily dependent on the detention of the vessel.

It is not indispensable to the termination of a voyage that the vessel should arrive at the terminus of her original destination; but it may be produced by stranding, stress of weather, or any other cause in

ducing her to enter another port with a view to terminate her voyage bona fide.

But if a vessel, not actually arriving at her port of original destination, excites an honest suspicion in the mind of the collector that her demand of a permit to land the cargo was merely colourable, this is not a termination of the voyage so as to preclude the right of detention.

1817.

Otis

V.

Walter.

ERROR to the supreme judicial court of the state of Massachusetts.

This was an action of trover brought in the state court, in which Walter, the plaintiff in that court, recovered of Otis, the defendant in that court, damages for the conversion of sundry articles constituting the cargo of a vessel called the Ten Sisters. The defendant in the court below, collector of the port of Barnstable, in Massachusetts, had detained the vessel under suspicion of an intention to violate the embargo laws, particularly the act of the 25th of April, 1808, sec. 6. and 11. The vessel sailed from Ipswich with a cargo of flour, tar, and rice, in order to carry the same to Barnstable, or to a place called Bass river in Yarmouth; and proceeded to Hyannis, in the collection district of Barnstable. On her arrival there, the master applied to the collector for a permit to land the cargo, which was refused by the latter, who shortly afterwards seized and detained the vessel under the abovementioned acts. This detention was given in evidence as a defence to the action under the general issue, and the chief justice of the supreme court of Massachusetts instructed the jury "that the said several matters and things, so allowed and proved,

1817.

Otis

V.

Walter.

Feb. 5th.

Feb. 21st,

were not sufficient to bar the plaintiff of his said action, nor did they constitute or amount to any defence whatever in the action," &c. Whereupon the jury found a verdict, and the court rendered a judg ment for the plaintiff.

The Attorney-General, for the plaintiff in error, argued, that this case fell under the principle of that of Crowell v. M'Fadon," and it would appear that the vessel was in itinere; but that even if this were not the state of the case, the jury ought to have been left to make their own inference from the facts, and not to have been charged by the judge that no defence whatever was made out.

Mr. Read, for the defendant in error, contended, that the case of Otis v. Bacon' was perfectly in point, and showed that the vessel, having arrived at her port of discharge, was no longer within the operation of the embargo laws; and that if the collector's defence was not completely made out-if it was, in any respect, materially defective, it was not made out at all,

Mr. Justice JOHNSON delivered the opinion of the court. This was an action of trover, brought in the state court of Massachusetts, in which Walter, the plaintiff in that court, recovered of Otis damages for the conversion of sundry articles constituting the cargo of a vessel called the Ten Sisters.

Otis, the collector of Barnstable, had detained the vessel under suspicion of an intention to violate the embargo laws. (Act of the 25th of April, 1808, sec. 6. and 11.)

It has already been decided, in such cases, that it is not necessary to show probable cause; that the law confides in the discretion of the collector, and is, in itself, a sufficient justification, when the discharge of duty is the real motive, and not the pretext for detention. But it has also been decided, that the law relates only to vessels ostensibly bound to some port in the United States; that a seizure is unjustifiable after the termination of a voyage; and that no further detention of the cargo is lawful than what is necessarily dependent upon the detention of the vessel.

In this case there was no ground for charging the collector with oppression or malversation; and the only point insisted on in the argument was, that she had actually terminated her voyage. As the clearance is not in evidence in the cause, we are obliged to take the termini of the voyage from the testimony of the captain, who swears that he sailed from Ipswich "with a cargo of tar, flour, and rice, to carry the same to Barnstable, in the county of Barnstable, or to a place called Bass river, in Yarmouth, in said county;" that he "proceeded to Hyannis, in the district of Barnstable: that on his arrival there he applied for a permit to land, which was refused by the collector, who, in a day or two afterwards, seized the vessel, and detained her under the embargo acts." Ipswich lies to the north of the pen

1817.

Otis

V.

Walter.

1817.

Otis

V.

Walter.

insula which terminates in Cape Cod; the port or bay of Barnstable on the north side of that peninsula ; Bass River and Hyannis Bay on the south; all of them known as distinct places, but all lying within the county and collection district of Barnstable. And although Hyannis Bay lies within the district of Barnstable; yet to reach it in sailing from Ipswich you must pass both the town of Barnstable and the mouth of Bass River.

The defence of the collector in the state court was founded on the authority to detain vested in him by the act of congress. The instruction of the chief justice of that state was in these words: "that the said several matters and things, so allowed and proved, were not sufficient to bar the plaintiff of his said action, nor did they constitute or amount to any defence whatever in the action."

Instructions couched in such general terms may serve to embarrass a court exercising appellate jurisdiction; but it is a mistake to suppose that it precludes such a court from a view of the errors which may have been committed on the trial. It has before been decided, that it only obliges this court to look through the whole cause, and examine if there be nothing in it which ought to have called forth a different instruction or judgment. In this case we are of opinion that, conformably to our former decisions, the instruction given could only have been sanctioned on the supposition that the vessel had actually terminated her voyage. But here it is contended that this court stand committed by an ad