Department of State, October 31st. 1807.
I have the honor to submit for your consideration and opinion the following question arising out of an award of the Board of Commissioners appointed under the 7th. Article of the late British Treaty.
The Brig Ceres, Hall, Master, belonging equally to William Prestman, William Calhoun, and Ebenezer Thayer of Charleston (S. C.) was laden at that port in the year 1794, the principal Cargo by the owners of the Vessel, and with some adventures on freight by Jeremiah Condy, William Condy, Frederick Kuhn, Joseph Otis, A, & W. Tunns and two or three others; and on her outward Voyage was taken by a British Cruizer. On submitting the case to the Board of Commissioners in London, the value of the Cargo was awarded to the real owners; and Mr. Thayer one of the owners of the Vessel also, procured an admission of the value of his 1/3 of the Vessel into that award. The The Commissioners in a second award, not knowing as it would seem, who the other Owners were, awarded their 2/3 of the Vessel amounting to L. 563.16.10 Stg: to Condy & others, the owners only of the adventures, together with the adventures. It is to be observed however, that all the awards of the Commissioners, in cases xxxxx where Mr. Erving the public Agent represented the parties, were subject to correction by him when mistakes were made. This error Mr. Erving did not discover, and directed Condy & Others to draw as well for the amount of their adventures as for the 2/3 of the Vessel, belonging as we have been since satisfied by the exhibition of the Register, to Prestman & Calhoun, and they were accordingly paid. Now Calhoun comes forward both in his own and Prestman’s right, and demands restitution. Had they put in their claim, as they ought to have done, before the 3d. & last instalment was paid, which did not take place till three years had expired from the date of the award, the error would have been discovered and that portion of the money arising from the Vessel paid over to them. But on the other hand Calhoun’s friends allege that for a long period of time he has been from ill health incapable of attending to his affairs, and that consequently this delay does not impair his claim. A question thence arises whether Calhoun, by whose delay in making known his right the agent of the United States paid the money in error, should not have recourse to Condy & others for obtaining his demand, or are the United States responsible to him, an if so, can they compell a restoration of the money from Condy & others, who received it without right, and must have done so with a knowledge that they had none. I am &c.
DNA: RG 59—DL—Domestic Letters.