GIL 0. LIVINGS- for detention. The answer to the Russian memorial TON & expressly di-claims concealment and even destruction of papers as a legal ground of condemnation. It is only a CHRIST ground to refuse costs or damages on restitution; or to refuse further proof, where there is prima facie ground MARY'D. of condemnation independent of the concealment-1, INS. Co. Rob. append. 5, answer to the Russian memorial, 2, Rob, 88-the Rising Sun. Even spoliation of papers would affect Baxter's property only; and the Plaintiffs would be permitted to give further proof. Some of the papers delivered to Giles were wholly unimportant, and unnecessary to the prosecution of the voyage in safety, and yet the opinion of the Court, (to be in favor of the Plaintiffs) required that they should be necessary according to the usage and course of the trade. Among those papers was an estimate of the value of the cargo if re-shipped from New York to Cadiz. This certainly was not necessary by the usage of the trade. There were several other papers equally unimportant. Yet in the opinion of the Court the concealment of these papers violated the warranty of neutrality. 3. The 3d question arose on the 6th bill of exceptions which was to the opinion of the Court which made Baruso's character, as a neutral or belligerent, depend upon the kind of trade he carried on, as well as upon his domicil, The Plaintiffs object to this opinion, 1st. Because the place of domicil acquired in time of peace is the criterion of a man's character as neutral or belligerent, and not the nature of the trade. In the case of the Harmony, 2, Rob. 266, G. W. Murray residing in France, was considered as a belligerent, while his partners in the sume adventure, residing in the United States were considered as neutrals. 3, Rob. 21, the Indian Chief. 3, Rob. 37, the Citto.-1, Rob. 323, standing interrogatories. 12th interrogatory as to residence of the parties.-5, Rob. Appendix, order in council of the 24th of June, 1803, relating to inhabitants of certain colonies. 8, T. R. 31, Wilson v. Marryat, 1, Caine's cases in error, 25, Duguet v. Rhinelander. The nature of the trade has nothing to do with the question. If neutral by domicil he may trade with belligerents, provi His neu- LIVINGS TON & GIL CHRIST ded it be not in articles contraband of war, trality was not inconsistent with his privilege as a Spanish subject. He does not lose his privilege by becoming a neutral American. As between him and the government of Spain, be was still a Spanish subject. But as between him and the government of Great Bri- MARR'D. tain, he was, according to the principles of the British Ins. Co. prize Courts, an American merchant. The Plaintiffs also object to the opinion of the Court because there was no evidence upon which the Court could ground the hypothesis, that Baruso came to this country to carry on that trade only. Although the fact might be that he carried on no other trade yet it does not follow that he came here for no other purpose. 4. The 4th question arises under the 7th bill of exceptions, which states that the Court (in compliance with the opinion of the Supreme Court *) left it to the jury to determine whether Baruso had an interest in the return cargo which increased the risk of the voyage; and directed the jury that if the risk was increased, the policy was thereby vacated. The Plaintiffs object to this opinion of the Court, 1. Because it leaves it to the jury to decide a mere question of law, viz: whether the contingent interest of Baruso in the voyage, could have the effect of defeating the Plaintiffs right to recover, by increasing the risk; instead of directing them, as ought to have been done, that such an interest was not subject to capture ; that the Plaintiffs were not bound to disclose it; and that therefore it could not in law affect their right to recover. 2. Because it does not, as it ought to have done, make the effect of Baruso's interest on the right of recovery, depend on his national character; it being clear, as the Plaintiffs contend, that if he was a neutral, and not a belligerent, his property was not liable to capture, and no interest which he had in the voyage could affect their right. * See Ante, vol. 6, p. 274, υ. LIVINGS- 3. Because it does not, as it ought to have done, make the effect of this interest on the right of recovery, depend on the usage and course of the trade; it being clear as they contend, that if the usage and course of the trade authorized the use of a Spaniard's name to MARY'D. cover the voyage, a mere contingent interest of that Spaniard in the voyage could not, nor could any interest which he could have in it consistently with the warranty, affect the right of the Plaintiffs. v. INS. CO. 4. Because the Defendants, having protected themselves, by a warranty of neutrality, against the effect of any belligerent interest in the voyage, were not entitled to a disclosure of that of Baruso, even could it be considered as a belligerent interest. The Court below misunderstood the opinion of this Court upon every point on which an opinion was given when this cause was before this Court on the former writ of error, (Ante, vol. 6, p. 274.) Whether Baruso had an interest in the return cargo was a question of law dependent upon the construction of this contract. The opinion of this Court was that if Baruso had an interest in the return cargo, the materiality of that interest to the risk of the voyage, was a fact to be decided by a jury under the direction of a court. This Court did not decide that the question whether Baruso had such an interest, was to be left to the jury. The Court below ought to have directed the jury that Baruso had no interest. He was not to share the loss unless that loss happened by a defect in his license. He was only to share in the profits after the vessel should arrive. It was only a contingent interest in the success of the voyage, like the interest of a consignce who is to have a commission on the sales. Suppose a consignee in a neutral country should be a subject of a belligerent nation, would his contingent interest vitiate the policy? It would afford no just ground of interference by a belligerent. The question is not what would furnish a just pretext for rapacity, but what would be a just ground of detention under the law of nations. 1, Caine's Ca. in error, 25, Duguet v. Rhinelander. 9, East, 282, Ba- LIVINGSker v. Blakes. The Court below ought to have told the jury that Baruso, being domiciliated in the United States, was to be considered as a neutral, and as such, his property was safe under the law of nations, whatever pretext his name might have afforded to a rapacious cruizer. The connexion of a belligerent interest with a neutral interest, does not render void a policy on the neutral interest. Besides the course of the trade made it necessary that the property should be in the name of Baruso, and this was known to the underwriters. But, with submission to any opinion which this Court may have given, the interest of Baruso was wholly immaterial to this case. The Defendants have guarded themselves by the warranty of neutrality. If the property be neutral their mouths are stopped. When they take a warranty, they wave all questions of this kind. The premium was calculated upon the warranty. When a contract is reduced to writing all antecedent negotiations are merged in the conclusive act. The Plaintiffs were not bound to give notice of any belligerent interest. As to every thing against which the warranty is a protection, no disclosure was necessary.-Marshall, 475. If Baruso's interest did not violate the warranty it was immaterial. 5. The 5th question arose upon the Sth bill of exceptions which was taken to the opinion of the Court, that if the jury should be of opinion that the papers "which were delivered by Giles to Baxter, or any of them, increased the risk, and that if any of the papers which did so increase the risk were not necessary by "the laws and usages of Spain, or the course and usage "of trade between the United States and Lima, and "that it was not communicated to the Defendants that "such papers would accompany the cargo, then the "Plaintiffs were not entitled to recover." To this opinion the Plaintiffs object, TON & CHIRST v. MARY'D. INS. CO. LIVINGS TON & GIL CHRIST v. MARY'D. INS. CO. 1. Because it requires that those papers, in order to be considered as innocent, should be necessary by the usage and course of the trade; whereas it was sufficient if the usage authorized them, although it might not have rendered them necessary. 2. Because the Defendants having protected themselves by a warranty of neutrality against unneutral conduct, were not entitled to a disclosure of the fact that those papers would be on board. The effect of the Spanish papers was neutralized by the real American documents on board, showing clearly the real state of the interest of the Plaintiffs. If the Spanish papers had stood alone they might have been a ground of detention, or perhaps of further proof; but they of themselves showed a neutral character, though not the same ownership. They showed the property to belong to Baruso, and that he was a resident of Boston. But the papers which accompanied them in the same bundle, showed the real ownership and clear neutrality of the cargo. The Spanish papers, therefore, did not prove the property to be belligerent; and if they did not falsify the warranty, they were perfectly immaterial. 6. The 6th question was upon the 9th bill of exceptions, which was taken to the refusal of the Court to instruct the jury that in estimating the risk they were to take into consideration the circumstance that it was a voyage which the Defendants were informed was carried on under a license from the Spanish government. It is clear that the connexion of Baruso with such a voyage could not increase the risk. 7. The 7th question was upon the 11th bill of exceptions, which was taken to the opinion of the Court that parol evidence was not admissible to prove any usage, custom, or course of trade, conformable to the legislative edicts or acts of the Spanish government. But that such evidence was admissible to prove the general usage or course of trade that might depend upon instructions to the government of Peru. The Plaintiffs object to this opinion because it precluded them from parol proof of the usage and course |