Le Blanc then fuggefted that the Court might direct a trial in the firft inftance, in order to ascertain the truth of the facts under a plea of bankruptcy. The Court accordingly ordered the rule to ftand over: the Plaintiff to deliver a declaration; the Defendant to plead his certificate; and the parties to go to trial at the enfuing affizes. 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 witneffes, all of whom swore to the fact of the money having been loft in 1793, and two of them founded their teftimony on particular circumftances 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 queftion took place. Verdict for the Plaintiff. Cockell Serjt. early in this term moved for a rule nifi for a new trial, on two affidavits contradicting the particular circumstances on which the two witneffes abovementioned founded their teftimony: viz. firft, the affidavit of two perfons who had been overfeers of the poor of Hunmanby in the year 1791, and swore that Thomas Dinnis was mafter 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 refided, had examined the registry of burials, and found that a child of his had been buried there on the 17th of Auguft 1792, and that no other child of his had been buried there fince that time. The certificate of the vicar to that effect was alfo produced. The Court obferved, that though it was unufual to grant a new trial on evidence contradicting the teftimony on which the verdict had proceeded, difcovered fubfequent to the trial (a), yet as the (a) So an objection to the competency of witneffes difcovered fubfequent to the trial is not a fufficient ground for a new trial. 1799. LISTER V. MUNDELL. 1799. LISTER V. MUNDELL. very facts on which thefe witneffes 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 nif: Against this Le Blanc was now to have fhewn cause, but on a queftion from the Court he admitted that he could not contradict the affidavits which had been produced: and therefore the Court made The rule abfolute. May 6th. 3 Bof. & Pull. 113, 114. Under the late treaty between this country and the United States of Americe confirmed by 37 Geo. 3. c. 97. it is. A IN THE EXCHEQUER CHAMBER. MARRYAT v. WILSON in Error. WRIT of error having been brought in this Court on the judgment given in the Court of King's Bench between thefe parties, (vid. 8 T. R. 31.) the cafe was argued early in this term by Rous for the Plaintiff in Error and Gibbs for the Defendant; the general line of argument however being the fame as that in the King's Bench, and much commented on in the judgment of the Court, it was thought unneceffary to do more than fubjoin in the form of notes to the following judgment whatever appeared to the Americans at all new or material. by the 13th Ar not necel fary that the trade conceded ticle fhould be direct from America to the Britifb fettlements in the Eaft Indies: it may be carried on circuitously, through any country in Europe, including Great Britain. The Court took time to confider of their opinion, which was this day delivered by EYRE Ch. J. The fubftance of this record having been very recently ftated to the Court, and the record at large being to be found in the Term Reports, I fhall content myself with referring to it, ftating fo much of it only as may be neceffary to introduce A natural born the questions which have arifen upon it. This is an action upon policies of infurance fet forth in the first, third, and fifth counts of fubject of this country admitted a citizen of the United States of America either before or after the declaration of American independence, may be confidered as a subject of the United States fo as to entitle him to trade to the East Indies under the above treaty. the the declaration. That in the firft count being a valued policy on one moiety of the' fhip Argonaut, Collet mafter, at and from Bourdeaux 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 ufe of John Collet. The policy in the third count being a valued policy on goods neutral property on board the fame ship on a voyage at and from Bourdeaux to the Eaft Indies with liberty to touch call and trade at all ports and places or iflands whatfoever and wherefoever as well at the Cape as on this or the other fide of the Cape of Good Hope, until her arrival at her port of difcharge in Bengal; and this policy is alfo ftated and found to have been effected for the ufe of the faid John Collet. The policy in the fifth count being on goods warranted American property laden on board the fame fhip for a voyage at and from Madeira to her laft port of discharge in India, with liberty to touch stay and trade at all ports places and iflands whatsoever and wherefoever as well at, as on this and on the other fide of the Cape of Good Hope; and this policy is ftated and found to have been effected for the ufe of the faid John Collet and one Anthony Butler. The Defendant underwrote all these policies, and a lofs has been fuftained both of fhip 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 fuch cannot be made the fubject of contracts of this nature, and therefore that the Defendant is not bound by thefe contracts to make good his proportion of the lofs. The facts of the cafe upon which this charge of illegality is founded, as may be collected from the fpecial verdict in this cause, are these: John Collet and Anthony Butler on whofe accourt thefe policies were refpectively effected, appear to have been natural-born fubjects of His Majefty but to have been refi. 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 fubfequent to the ratification of fuch independence. On the 12th of June 1795 they became the owners of 1799. MARRYAT บ. WILSON. 432 1799. MARRYAT V. WILSON. of this veffel in moieties; on the 25th of July 1795 Collet failed in her as mafter, having a cargo of corn and flour on board from Philadelphia for France, with a view of proceeding from thence with the fhip after the difpofal of her cargo there to Madeira and the East Indies and from thence back to the United States. On the 1ft of May 1796 Collet arrived with this fhip at Brest, and there fold his flour; he afterwards proceeded to Bourdeaux where he fold the remainder of his cargo, and he there shipped on his own account the goods mentioned in the second of thefe policies. While the ship remained at Bourdeaux, Collet came to London, and having procured a credit with the Plaintiff in this caufe, he the Plaintiff purchased here upon his own credit by commiflion goods and merchandize of British growth and of British manufacture on account of Collet and Butler, and these are the goods which are the fubject 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 fhips, in which they were carried from London to Madeira for the purpose of being there re-fhipped and put on board the Argonaut, and of being carried in that ship together with the goods fhipped on board her at Bourdeaux from Madeira to the British territories in the East Indies, and of being imported into thofe territories and traded trafficked and adventured in there; and it appears that at the time of this lofs Collet and Butler remained debtors to the Plaintiff for the amount of these goods. On the 1ft May 1796 the Argonaut failed from Bourdeaux 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: fhe arrived at Madeira and took thofe goods on board there and afterwards failed from Madeira in the profecution of her voyage to the Eaft Indies, in the courfe of which voyage the was feized by the commander of a fquadron of the King's fhips on fufpicion of being an illicit trader, and this has been confidered throughout the cause on all fides as a total lofs of the fhip and cargo. It feems 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 Argonaut with the British territories in the Eaft Indies is to be confidered as illegal and the fhip an illicit trader, 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 Majefty on the 28th of October in that year and retrofpectively confirmed by parliament in the 37 Geo. 3. By the 11th article of that treaty it is agreed that there fhall be a reciprocal and entirely perfect liberty of navigation and commerce between their refpective people in the manner, under the limitations and on the conditions fpecified in the treaty. By the 13th article His Majefty confents that the veffels belonging to the citizens of the United States of America fhall be admitted and hofpitably received in all the fea-ports and harbours of the British territories in the Eaft Indies, and that the citizens of the faid United States may freely carry on a trade between the faid territories and the faid United States in all articles of which the importation or exportation refpectively to or from the faid territories fhall not be entirely prohibited: Provided only that it fhall not be lawful for them in any time of war between the British government and any other power or ftate whatever to export from the faid territories without the fpecial permiffion of the British government there any military ftores, or naval ftores, or rice. The citizens of the United States are to pay no higher tonnage duty than British veffels pay in the ports of the United States, and they are to pay the fame import and export duties as are paid by British veffels. It is exprefsly agreed that the veffels of the United States fhall 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 fame fhall be unladen, and fuch regulations fhall be adopted by both parties as fhall be found neceflary to enforce the due and faithful obfervance of this ftipulation. This article is not to extend to allow the veffels of the United States to carry on any part of the coafting trade of the British territories: and for explanation it is added, that veffels going with their original cargoes or part thereof from one port of difcharge to another are not to be confidered as carrying on the coafting trade. This article contains fome other provifions by which Americans are to govern themselves in their intercourfe with the British territories, VOL. I. F F but 1799. MARRYAT V. WILSON. |