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Chirac v. Reinicker, (EJECTMENT. Evidence. PRACtice.]

280 The Common Council of Alexandria, (Fowle o.) [DEMURRER TO Evidence.]

E.

320

Etting o. T'he Bank of the U. S., [FRAUD AND Con-
CEALMENT IN CONTRACTS. PRACTICE.]

F.
Finley v. The Bank of the U.S., [Practice.] 304
Fowle v. The Common Council of Alexandria, [DE-
MURRER TO Evidence.]

320 Fowler, (Littlepage v.) [Local Law.]

215

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Governeur v. Robertson, [Alien. Local Law.]
Griffin, (Walker v.) [Devise.]
Guy, (Shelby v.) [STATUTE OF Limitations. PLEAD-

ING. Local Law.]

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Harding v. Handy, "CHANCERY. FRAUDULENT Deed.] 103
Hart, (Perkins v.) (PLEADING. Practice.]
Hinde o. Longworth, [STATUTE of Frauds. Evi-
DENCE.]

199

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Kelly, (The U.S. v.) [CONSTRUCTION OF STATUTE.] 417

L.
Littlepage v. Fowler, (Local Law.]
Longworth, (Hinde v.) [STATUTE OF Frauds. Evi-
DENCE.]

M.
The Marianna Flora, [Prize.]
Marbury, (Brooks o.) [ASSIGNMENT FOR THE BENEFIT

of CREDITORS. EVIDENCE.)

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MEMORANDUM.

In the case of Ogden v. Saunders, and the other causes involving the question of the validity of the State bankrupt or insolvent laws, (argued at February term, 1824, by Mr. Clay, Mr. D. B. Ogden, and Mr. Haines, for the validity, and by Mr. Webster and Mr. Wheaton, against it,) the Court directed a re-argument at the next term.

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The MARIANNA FLORA. The Vice Consul of

Portugal, Claimant.

In Admiralty proceedings, amendments are made in the appellate

Court, not only as to form, but as to matter of substance, as by the filing a new count to the libel; the parties being permitted, whenever public justice, and the substantial merits require it, to introduce new allegations and new proofs; non allegata allegare, et non pro

bata probare. If the amendment is made in the Circuit Court, the cause is beard

and adjudicated by that Court, and (upon appeal) by this Court on the new allegation; but if the amendment is allowed by this Court, the cause is remanded to the Circuit Court, with directions to permit

the amendment to be made. An attack made upon a vessel of the United States, by an armed ves

sel, with the avowed intention of repelling the approach of the former, or of crippling or destroying her, upon a mistaken supposition that she was a piratical cruizer, and without a piratical or felonious intent, or for the purpose of wanton plunder, or malicious destruction of property, is not a piratical aggression under the act

of the 3d of March, 1819, c. 75. Nor is an armed vessel, captured under such circumstances, liable to

confiscation as for a hostile aggression, under the general law of nations. VOL. XI.

1826. The act extends to foreign vessels committing a piratical aggression ;

and whatever responsibility the nation may incur towards foreign The Marian- states, by executing its provisions, the tribunals of the United na Flora. States are bound to carry them into effect.

Pirates may be lawfully captured by the public or private ships of

any nation, in peace or in war; for they are hostes humani generis. American ships offending against our own laws, may be seized upon

the ocean, and foreign ships thus offending within our territorial jurisdiction, may be pursued and seized upon the ocean, and brought into our ports for adjudication. But, in such cases, the party seizes at his peril, and is liable to costs

and damages if he fails to establish the forfeiture. Ships of war sailing under the authority of their government, in time

of peace, have a right to approach other vessels at sea for the purpose of ascertaining their real characters, so far as the same can be done without the exercise of the right of visitation and search,

which does not exist in time of peace. No vessel is bound to await the approach of armed ships under such

circumstances; but such vessel cannot lawfully prevent their ap

proach by the use of force, upon the mere suspicion of danger. Where an aggression was committed by a foreign armed merchant

vessel, on a public armed ship of the United States, under these circumstances, and a combat ensued upon mutual misapprehension and mistake, the commander of the public ship was held exempt from costs and damages for subduing, seizing, and bringing into a port of this country for adjudication, the offending vessel.

APPEAL from the Circuit Court of Massachusetts.

The original libel filed in the District Court against the Portuguese ship Marianna Flora, and cargo, was for an alleged piratical aggression attempted or committed by the ship on the United States armed schooner Alligator, Lieutenant Stockton commander, against the act of Congress of the 3d of March, 1819, c. 75. entitled, “ An act to protect the commerce of the United States, and punish the crime of piracy."

a Which provides, (sec. 1.) that the President of the United States be authorized and requested to employ so many of the public

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