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1799

LISTER

MUNDELLE

Le Blanc then suggested that the Court might direct a trial in the first instance, in order to ascertain the truth of the facts under a plea of bankruptcy.

The Court accordingly ordered the rule to stand over: the Plaintiff to deliver a declaration; the Defendant to plead his certificate; and the parties to go to trial at the ensuing asfizes.

At the trial the principal point in difpute was, whether a certain fum of money had been loft at the Scarborough races in August 1793, or in August 1792, the latter not being within twelve months previous to the bankruptcy. To prove that it was loft in 1793, the Plaintiff produced three witnesses, all of whom swore to the fact of the money having been lost in 1793, and two of them founded their testimony on particular circumstances within their recollection; viz. Thomas Dinnis, that till 1793 he had lived at Hunmanby in Yorkshire, and on his leaving that place had come immediately to Scarborough ; and Fr. William Dove, that a child of his died about a month before the race in question took place. Verdi& for the Plaintiff.

Cockell Serjt. early in this term moved for a rule nis for a new trial, on two affidavits contradicting the particular circumstances on which the two witnefles abovementioned founded their teftimony: viz. first, the affidavit of two persons who had been overseers of the poor of Hunmanby in the year 1791, and swore that Thomas Dinnis was master of the poor-house there, and was paid off and discharged by the deponents on the 22d of November in that year, and that within a few days afterwards he went and refided at Scarborough : Secondly, the affidavit of two other perfons, who, together with the vicar of the parish where William Dove resided, had examined the registry of burials, and found that a child of his had been buried there on the 17th of August 1792, and that no other child of his had been buried there since that time. The certificate of the vicar to that effect was also produced.

The Court observed, that though it was unusual to grant a new trial on evidence contradicting the testimony on which the verdict had proceeded, discovered fubfequent to the trial (a}, yet as the

(a) So an objection to the competency of is not a sufficient ground for a new trial. witnesses discovered subsequst to the trial Turner v. Pearte, 1 T. R. 717.

1799

LISTER

very facts on which these witnesses had founded themselves were falfified by the affidavits produced, they thought it afforded a fufficient ground for a new trial, and accordingly granted a rule nih:

MIUNDELL.

Against this Le Blanc was now to have shewn cause, but on a question from the Court he admitted that he could not contradict the affidavits which had been produced: and therefore the Court made

The rule absolute.

IN THE EXCHEQUER CHAMBER.

late treaty

not necel.

Mon 6th. 3 Bof.& Pull.

MARRYAT v. Wilson in Error. 113, 114. Under the

be

A WRIT of error having been brought in this Court on the tween this

judgment given in the Court of King's Bench between these country and

parties, (vid. 8 T.R. 31.) the case was argued early in this term the United States of Ame- by Rous for the Plaintiff in Error and Gibbs for the Defendant;. rice confirmed

the general line of argument however being the same as that in by 37 Geo. 3. 6.97. ic is. the King's Bench, and much commented on in the judgment of

the Court, it was thought unnecessary to do more than subjoin sary that the trade conceded in the form of notes to the following judgment whatever appeared to the Americans at all new or material. by the 13th Article should be direct from

The Court took time to consider of their opinion, which was America to the Britiso letele

this day delivered by ments in the East Indies : it

EYRE Ch.J. The substance of this record having been very may be carried on circuitoully, recently stated to the Court, and the record at large being to be through any country in Esse

found in the Term Reports, I shall content myself with referring rope, including

to it, stating so much of it only as may be necessary to introduce A natural born the questions which have arisen upon it. This is an action upon subject of this

policies of insurance set forth in the first, third, and fifth counts of country admitted a citizen of the United States of America ejther before or after the declaration of American independence, may be considered as a subject of the United States so as to entitle him to trade to the Eaj Indies under the above treaty.

the

Great Britain.

1799.

MARRYAT

WILSON,

the declaration. That in the first count being a valued policy on one moiety of the ship Argonaut, Collet master, at and from Bourdeaur to Madeira, and the East Indies, and back to America, with liberty to touch stay and trade at all ports and places whatfoever or wherefoever on the outward or homeward bound voyage; and this policy is ftated and found to have been effected by the Plaintiff for the use of John Collet. The policy in the third count being a valued policy on goods neutral property on board the same ship on a voyage at and from Bourdeaux to the East Indies with liberty to touch call and trade at all ports and places or islands whatsoever and wheresoever as well at the Cape as on this or the other side of the Cape of Good Hope, until her arrival at her port of discharge in Bengal ; and this policy is also stated and found to have been effected for the use of the said John Collet. The policy in the fifth count being on goods warranted American property laden on board the same ship for a voyage at and from Madeira to her last port of discharge in India, with liberty to touch stay and trade at all ports places and illands whatsoever and wherefoever as well at, as on this and on the other side of the Cape of Good Hope ; and this policy is ftated and found to have been effected for the use of the said John Collet and one Anthony Butler.

The Defendant underwrote all these policies, and a loss has been sustained both of thip and cargo which is admitted to be within the terms of the policy; but it has been infifted upon the part of the Defendant that the voyages described in these policies are illegal voyages, and as such cannot be made the subject of contracts of this nature, and therefore that the Defendant is not bound by these contracts to make good his proportion of the loss.

The facts of the case upon which this charge of illegality is founded, as may be collected from the special verdict in this cause, are these: John Collet and Anthony Butler on whose accourt these policies were respectively effected, appear to have been natural-born subjects of His Majesty but to have been resi. dent and domiciled within the United States of America, the latter before the declaration of the independence of the United States the former at a period subsequent to the ratification of such independence. On the 12th of June 1795 they became the owners

of

432

1799.

MARRYAT

V. WILSON.

of this vefsel in moieties; on the 25th of July 1795 Collet failed in her as master, having a cargo of corn and flour on board from Philadelphia for France, with a view of proceeding from thence with the ship after the disposal of her cargo there to Madeira and the East Indies and from thence back to the United States. On the ist of May 1796 Collet arrived with this ship at Brest, and there sold his flour; he afterwards proceeded to Bourdeaur where he told the remainder of his cargo, and he there shipped on his own account the goods mentioned in the second of these policies. While the ship remained at Bourdeaux, Collet came to London, and having procured a credit with the Plaintiff in this cause, he the Plaintiff purchased here upon his own credit by commission goods and merchandize of British growth and of British manufacture on account of Collet and Builer, and these are the goods which are the fubje&t of the third of these policies.

The Plaintiff by the direction of Collet and during his stay in London fhipped these goods in the port of London on the joint account and risk of Collet and Butler on board three American ships, in which they were carried from London to Madeira for the purpose of being there re-thipped and put on board the Argonaut, and of being carried in that ship together with the goods thipped on board her at Bourdeaux from Madeira to the British territories in the East Indies, and of being imported into those territories and traded trafficked and adventured in there; and it appears that at the time of this loss Collet and Butler remained debtors to the Plaintiff for the amount of these goods. On the ift May 1796 the Argonaut failed from Bourdeaur with the goods there taken on board her for Madeira in order there to meet receive and take on board the goods shipped from London : she arrived at Madeira and took those goods on board there and afterwards failed from Madeira in the prosecution of her voyage to the East Indies, in the course of which

voyage

The was seized by the commander of a squadron of the King's ships on fufpicion of being an illicit trader, and this has been confidered throughout the cause on all fides as a total loss of the ship and cargo .

It seems to have been admitted on all fides in this cause that this voyage and the trade and traffick interded to have been carried on by the Azurinar:t with the British territories in the East Indies is to be confidered as illegal and the ihip an illicit trader,

12

unless

1799

MARRYAT

WILSON,

unless the voyage and the intended trading were legalized by the treaty of commerce which was entered into between Great Britain and the United States of America on the 19th of November 1794, which was afterwards ratified by the United States on the 14th of August 1795, and by His Majesty on the 28th of October in that year and retrospectively confirmed by parliament in the 37 Geo. 3.

By the 11th article of that treaty it is agreed that there shall be a reciprocal and entirely perfect liberty of navigation and commerce between their respective people in the manner, under the limitations and on the conditions fpecified in the treaty.

By the 13th article His Majesty consents that the vessels belonging to the citizens of the United States of America shall be admitted and hospitably received in all the fea-ports and harbours of the British territories in the East Indies, and that the citizens of the said United States may freely carry on a trade between the said territories and the faid United States in all articles of which the importation or exportation respectively to or from the faid territories shall not be entirely prohibited: Provided only that it shall not be lawful for them in any time of war between the British government and any other power or state whatever to export from the said territories without the special permission of the British government there any military stores, or naval stores, or rice. The citizens of the United States are to pay no higher tonnage duty than British vessels pay in the ports of the United States, and they are to pay the fame import and export duties as are paid by British veftels. It is expressly agreed that the vessels of the United States Thall not carry any of the articles exported by them from the said British territories to any port or place except to fome port or place in America where the same shall be unladen, and such regulations shall be adopted by both parties as shall be found neceffary to enforce the due and faithful observance of this ftipulation. This article is not to extend to allow the vessels of the United States to carry on any part of the coafting trade of the British territories: and for explanation it is added, that vessels going with their original cargoes or part thereof from one port of discharge to another are not to be considered as carrying on the coasting trade. This article contains fome other provisions by which Americans are to govern themselves in their intercourse with the British territories, VOL. I.

but

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