The Mary Merritt

16 F. Cas. 997, 2 Biss. 381

• Court: U.S. Circuit Court for the District of Eastern Wisconsin
• Decided: October 15, 1870
• Status: Published

Opinion

DRUMMOND, Circuit Judge.

It is clear that if the information sets forth a proper cause of forfeiture, within the main or prin-. cipal part of the statute, the fact that it does not allege that the case is not within the proviso will not prevent the operation of the statute. That is a matter of defense to be set up by the claimant. If he relies upon the proviso as exempting him from the operation of the main cause of forfeiture set forth in the statute, he must allege it. The construction which I place upon this statute of 1817, is that it applies in either contingency to vessels of the United States, or of foreign nations having a national character. I do not understand that the barque Mary Merritt is a vessel of the United States. It was built in Canada, and is owned by citizens of the United States. It is a settled rule that in all cases in order to give vessels a national character as vessels of the United States, and entitle them to registry, they must be built in this country. Some question has been made whether the barque Mary Merritt was not a British vessel, and various acts of mrliament have been cited upon that point; but so far as I can understand the application of these various laws to this case, it cannot be considered the vessel of any foreign nation, built as it was, in Canada, and owned here. It follows, therefore, from what has been said, that the exception made to the libel should have been overruled by the district court and therefore, the order dismissing the libel will be reversed, and the defendant have leave to withdraw his exception and answer the libel.