1816. The Nereid. then, either confirmed by condemnation, or lost by restitution. If the property is restored, it is releas ed from the character it had before borne from the time of capture, and ceases to be prize of war, but being captured and brought in as such, is to pay the prize duties. Pinkney, for the respondents and captors. The question now raised seemed to be settled by the decision in the case of the Concord, at the last term. But, independently of authority, the question is manifestly against the claimant. 1. The goods were not entered under the Prize Act, and the act of the 2d of August, 1813; but as neutral property imported in a foreign bottom, and having been sold, are evidently liable to the full duties on such goods, unless these acts authorize a diminution of them. 2. These acts do not authorize such diminution; the goods were not captured from the enemy, and have never been made good and lawful prize. They were taken from Mr. Pinto, who was no enemy, either in fact or constructively, according to the judgment of the court. If any thing, then, has made them lawful prize, how has it happened that they have been restored? The claimant's counsel, to avoid the арpearance of too bold a paradox, mitigates his conclusion on this head in such a way as proves nothing for the purpose of his argument. of his argument. He ends with saying, that these goods were captured and brought into the United States as good and lawful prize. He can scarcely, however, have intended to stop here; for if his conclusion goes no farther, it surrenders the The whole argument, unless it can be shown that to seize 1816. and bring in as prize that which is not good and lawful prize, and never can become so, makes good Nereid. and lawful prize of the thing so seized and brought in; or, in other words, that a seizure and bringing in, as prize, of neutral property, makes it, ipso jure, good prize, although the owner is, nevertheless, entitled to have it again, as not being good prize, and has, in fact, got it again accordingly. 3. The character of these goods, with reference to their liability to duty, was not determined at the time they were brought in. If they had been specifically restored, and withdrawn from the United States by the claimant, they would have been liable to no duty. 4. The words "made good and lawful prize," do not refer to the capture merely the act speaks of the capture first, and then adds, " and made good and lawful prize." The capture, too, must be of enemy's goods, either in fact, or in contemplation of law. To say, that the goods are, by the act of capture, made good and lawful prize, because the capture is made by a lawfully commissioned cruiser, is to drop more than a moiety of the definition of good and lawful prize, or, rather, to insist on that which is not an essential part of its definition. Prize may be made (as a droit) by a non-commissioned captor; but good and lawful prize cannot be made by any captor, unless the goods be liable to condemnation. It is the formula of a sentence of condemnation, to condemn the thing taken as "good and lawful prize" to the captors; and this not because it was taken by a lawfully commissioned cruiser, out because, being so taken, it 1816. The Nereid. March 6th. was under all the circumstances subject to confisca tion. 5. Capture gives possession; but it is the condemnation which ascertains that the things taken are good prize of war: until condemnation, it cannot be known whether they are good prize or not. But, certainly, it is self-evident, that after restitution 'it must be held, that they were not good prize. The condemnation does more than destroy the jus recuperandi. It establishes what nothing else can establish, that the goods were lawful prize. Restitution, on the other hand, establishes, conclusively, that they never were lawful prize, although they might be justifiably seized, upon probable cause, as such. MARSHALL, Ch. J., delivered the opinion of the court, that the goods were chargeable with the same rate of duties as goods imported in foreign bottoms, according to the decision in the case of the Concord. at the last term! (CHANCERY.) HEPBURN & DUNDAS' HEIRS AND EXECUTORS V. DUN- DUNLOP & COMPANY U. HEPBURN & DUNDAS' HEIRS court of equity will decree a specific performance of a contract for the sale of land, if the vendor is able to make a good title at any time before the decree is pronounced; but the dismission of a bill to enforce a specific performance in such a case, is a bar to a new bill for the same object. The inability of the vendor to make a good title at the time the decree is pronounced, though it forms a sufficient ground for refusing a specific performance, will not authorize a court of equity to rescind the agreement in a case where the parties have an adequate remedy at law for its breach. The alienage of the vendee is an insufficient ground to entitle the vendor to a decree for rescinding a contract for the sale of lands, though it may afford a reason for refusing a specific performance as against the vendee. But if the parties have not an adequate remedy at law, the vendor may be considered as a trustee for whoever may become purchasers under a sale by order of the court for the benefit of the vendee. Where the vendor is indebted to the vendee, and the sale is made in order to pay the debt, the vendor must pay interest from the time the debt is liquidated until he makes a good title, and the vendee is accountable for the rents and profits from the time the title is perfected until the contract is specifically performed. THESE causes were appeals from the chancery side of the circuit court of the district of Columbia for the county of Alexandria. The facts are stated in the opinion of the court, and the controversy is the 1816. Hepburn & V. Dunlop & March 9th. same as in the suits between the same parties rèported in 1 Cranch, 321., and 5 Cranch, 262. The causes were argued by Taylor and Swann for Hepburn & Dundas, and by Jones and Lee, for Dunlop & Company. WASHINGTON, J., delivered the opinion of the court. These causes come before the court upon appeals from the circuit court of the district of Columbia, for the county of Alexandria. The material facts upon which the questions now to be decided arise, are as follows: Hepburn & Dundas being indebted to John Dunlop & Co., of Great Britain, on account of certain mercantile dealings which had taken place between those parties, the precise amount whereof was disputed, an agreement in writing was entered into on the 27th of September, 1799, between the said Hepburn' & Dundas, and Colin Auld, the attorney in fact of John Dunlop & Co.; whereby it was stipulated that the parties mutually agreed to submit all matters in dispute, respecting the demand of Dunlop & Co., to certain arbitrators named in the agreement, whose award should be made on or before the 1st day of January following. That Auld, as the agent of Dunlop & Co., would, on the next day, to wit, the 2d day of January, 1800, accept, from Hepburn & Dundas, the sum which should be awarded to Dunlop & Co., in bills of exchange, or in Virginia currency, at the par of exchange; and upon such payment being made in either way, that Auld would give to Hepburn & Dundas a full receipt and |