1806. question. The exemplification, however, was under the great seal of Maryland, but was not attested by the governor, or any other principal officer, of the state. The prisoner's counsel objected to the want of such attestation; but the objection was over ruled. By the COURT: The act of congress declares, "that the acts of "the legislatures of the several states shall be authenticated, by hav"ing the seal of their respective states affixed thereto." 1 vol. 115. It does not require the attestation of any public officer in this case; although in all the cases afterwards provided for, such an attestation is required. There is a good reason for the distinction. The seal is in itself, the highest test of authenticity; and leaving the evidence upon that alone, precludes all controversy, as to the officer entitled to affix the seal, which is a regulation very different in the different states. 4th. On the evidence in the cause, various grounds of defence were adopted by the prisoner's counsel, Lervis, Rawle, S. Levy, S. Ewing, and C. Ingersoll, and controverted by Dallas, attorney of the district, of which the principal were these: 1st. That the second section of the act of congress does not expressly authorise an indictment against an American citizen; and it would be an usurpation of legislative power, to extend its operation to aliens, committing offences on the high seas. 2d. That the act does not expressly embrace the case of an insurance by a corporation; and a corporation is not included in the description of persons. 3d. That the indictment describes the Experiment to be a ship or vessel, which is not sufficiently specific. 4th. That in fact, and in law, the vessel was not cast away and destroyed. 5th. That if the vessel were feloniously destroyed, the evidence does not prove the prisoner to be the felon. (3) The COURT, in the charge to the jury, having reviewed and commented upon the facts, observed, that the objections, in point of law, would appear on the record, and might be taken advantage of, upon a motion in arrest of judgment. On the law, therefore, the COURT avoided giving any opinion at present, except in relation to the question,-what constituted the destruction of a ship, or vessel, within the meaning of the act of congress? On this question, they had deliberated much; and, as the result, reduced to writing an opinion, which they delivered, in charge to (3) In the course of the defence, the following authorities were cited: 2 East, P. C. 1097, 8. Johnson's Dict. " Cast-away." 8 Mod. 67. ca. 48. Ib. 74. ca. 52. 4 Hawk. 67. 62. 2 Burr. 1037. Plowd. 177. 1 Leach, 215. Rex v. Harrison. '2 Stra. 1241. 8 Mod. 66. 1 Halc, 635. 2 Hale, 389. 8 Inst. 202. 4 Bl. C. 831. Leach, 109. Con. Interp. 2 Hawk. c. 25. s. 58, 59. Ib. c. 23. s. 82. 2 Rol. Abr. 30. 5 Mod. 137, 8. The attorney of the district cited 1 Leach, 215. 1 Bl. G. 467. 2. Inst. 702. 1 Woodes. 195. the the jury, in these words: "To destroy a vessel, is to unfit her 1806. "for service, beyond the hopes of recovery, by ordinary means. “ This, in extent of injury, is synonymous with cast away. It is “the generical term: casting away is a species of destroying, as “ burning is. Both mean such an act, as causes a vessel to perish, “ or be lost, so as to be irrecoverable by ordinary means.” The defendant was acquitted, owing, it is believed, to a doubt, whether he had bored himself, or directed any other person to bore, the auger holes in the bottom of the vessel; which was a new vessel, picked up at sea, after she was abandoned, carried into St. Jago de Cuba, and there (the holes being discovered) soon repaired, and fitted again for sea. Symonds versus The Union Insurance Company. HE plaintiff had effected, at the office of the defendants, three policies of insurance, dated the 12th of September 1803. The first on the schooner Diana, Nicholas master, valued at 4500 dollars; the second on the freight of the schooner, valued at 1500 dollars, and the third on her cargo, valued at 4000 dollars; on a voyage, “at and from New-York to Cape François with liberty to "proceed to another port, should Cape François be blockaded, and the vessel prevented entering that port, from that, or any other, “cause, and at and from thence back to New-York." The order for the insurance, declared “that the assured is not to abandon, “if she cannot enter the Cape from blockade or other cause, but "liberty is given to proceed to some other port." The schooner sailed from New-York, on the 19th of September 1803, with instructions “to proceed to Cape François; and, if she “could not enter, from blockade or other cause, to steer towards "the Bite of Leogane, and enter either into Port-au-Prince, or • some other port in the bite." On the 8th of October, she was boarded, off the island of St. Domingo, by an officer from the Blanche, a British frigate, who sent her papers on board the Bellerophon, another British ship of war. On the next day capt. Nicholas was taken on board the Bellerophon, and was informed, “that the "island of St. Domingo was blockaded by an English squadron, “in consequence of which no vessel would be permitted to enter "any port or harbour, in the said island;" and, to that effect, the register and papers of the schooner were indorsed. It appeared, also, from the captain's testimony, "that he was told he was not "permitted to proceed on his intended voyage, nor to go to Cuba; "but should proceed down to Kingston, Jamaica; that he was "ordered to keep near the frigate Desire, until they had cleared "the island of St. Domingo; that on his arrival at Kingston, he a was, also, told by the custom-house officers, that he could not VOL. IV, 3 H "cleax 1806. "clear out for Cuba, whither he was still desirous of going; and "that, finally, the cargo was landed and sold at Kingston." The proceeds were then vested in another cargo, with which the ship returned to New-York. On her arrival there, about the 17th of December 1803, the plaintiff abandoned the cargo and freight to the defendants, and claimed as for a total loss; to recover which (deducting the proceeds of the cargo, and accounting for the profits on the investment homeward) the present action was instituted. On the trial of the cause these grounds of defence were taken: 1st. That upon the specific terms of the contract, the assured had not a right to abandon. The consequence of being turned aside by a blockading force was contemplated by the parties, but not insured against; for, the voyage insured was to the Cape, or to another unblockaded port of Hispaniola. The whole island being blockaded, another port must be sought at the risque of the assured; the conduct of the British being neither capture, nor arrest; but, simply, precaution, to prevent a breach of blockade. 2d. That on general principles, it is not a case of abandonment, for a total loss. The cargo was not prevented from arriving at its place of destination, by any risque insured against, acting upon the subject insured immediately, and not circuitously. There has been no capture, with a view to condemnation; no arrest, for the purpose of an embargo, in the service of a foreign prince; the cargo remains specifically the same; the ship has returned; wages have been paid, and of course freight has been earned; nothing, in short, has affected the voyage insured, but the act of preventing a breach of blockade, and the low state of the Kingston market, and for neither of these is the underwriter liable. 2 Marsh. 434. 2 Burr. 1198. 1 T. Rep. 187. 2 Marsh. 482. 2 Burr. 696. 3 Atk. 195. 2 Stra. 849. 2 Marsh. 496. Doug. 219. 1 Esp. N. P. Rep. 237. S Bos. and Pull. 388. 5 Esp. N. P. Rep. 50. Mill. 305, 6. 5 East, 388. The answer, for the plaintiff, was, in general, that the voyage insured had been destroyed, by the superior force of a foreign power; and that, independent of the means taken to prevent a breach of the blockade, the vessel had been constrained, against the express desire of the captain, to proceed to a particular port, in exclusion of every other. And the COURT, in the charge to the jury, declared the law to be clearly with the plaintiff; on which a verdict was found in his favour for the goods and freight, at the value insured, subject to a deduction of the proceeds of the homeward investment. Rawle, for the plaintiff. Conframp Conframp et al. versus Bunel. CAPIAS. On a rule to show cause, why the defendant should not be discharged on common bail, the following facts were established by the plaintiff: That in the year 1787, the defendant gave his note for 55,000 livres, to a person of the name of Horguetand, payable in two instalments, for value received in 55 negroes. On the 8th of February 1787, the note was assigned to the plaintiffs, and several partial payments were afterwards indorsed upon it. In November 1789, a suit was instituted at Portau-Prince, to recover the balance; and a judgment, by default, was entered for 36,666 livres; to recover which was the object of the present action. For the defendant it was shown, that all the parties to the contract were French subjects, resident in the island of St. Domingo, at the time the contract was made; that they continued French subjects at this time; that in August of the year 1793, the French commissioners (Polverel and Santhorax) had proclaimed, at Portau-Prince, the abolition of slavery, and the freedom of the negroes; which the national convention ratified in the February ensuing; 4 Edw. Hist. West Ind. 146. 219. that, in consequence of this emancipation, the very negroes, who had been purchased by the defendant, had been taken from him; and that with a view to the calamitous situation of the colony, the following laws had been enacted by the French government: 1st. Extract from the law of the 6th of September 1802. “Sect. 1. Until the 1st of Vendemaire 16th year all suits are sus"pended as weil against the principal debtors as their securities for "debts contracted prior to the 1st of January 1792, for the pur"chase of real property, or of negroes. "Sect. 6. The creditors may however take all conservatory "steps for the preservation of their rights, and even have the amount of their debts liquidated by judgments, but the execu"tion thereof shall be stayed according to the first section." ແ 2d. Supplement to the above law, of the 12th of April 1803. The preamble states that doubts have arisen, as to the con struction of the 6th article; and the supplement declares, "Sect. 1. That by the words "conservatory steps" (actes con"servatoires) are not to be understood any acts, which would "prevent the effect of the suspensive clause of the law, such as "attachments of property, levies on real or personal estate, oppo"sitions to the payment of rents, or other debts, &c. "Sect. 2. Oppositions (in nature of attachments) made to "the payment of principal sums due to the debtors, shall not pre"vent such payments, but the debtor shall be bound to make it appear 419 1806. 1806. "appear within six months, that he has employed those capitals, "in improving his St, Domingo plantation, otherwise he will not "be entitled to the benefit of the law." Upon these premises, the defendant's counsel contended, 1st. That the contract of the parties was to be expounded and enforced, according to the laws of France. 1 Bos. & Pull. 133. 3 Vez. jun. 446. 4 Vez. jun. 577. 1 Bl. Rep. 258. 1 H. Bl. 665. 690. 4 T. Rep. 184. 2d. That upon the general principles of the French law, the defendant was not liable to be personally arrested on this contract, which does not constitute a commercial debt. 7. Tit. 1. Art. Ord. of Com. p. 386. 3d. That the right of action, to recover the debt, was expressly suspended by the law of the 6th of September 1802; and it was as irregular to commence the suit, before the suspension had run out, as it would be to obtain judgment and issue execution. The plaintiff's counsel answered: 1st. That this was a commercial debt, within the terms of the authority cited, for which a personal arrest was authorised by the law of France. 2d. That the law of the 6th of September 1802, applies to original causes of action, and not to cases in which judgment had been previously rendered. 3d. That even where the lex loci governs the contract, it is the law of the country in which the suit is brought, that must furnish the form of the remedy. Kaim's P. E. 567, 8. 2 Vern. 540. 3 Dall. Rep. 373. 1 Bos. & Pull. 139, 140. 4th. That the utmost benefit, which the defendant can reasonably claim from the law of September 1802, is a stay of execution till the specified period has elapsed: but, in the mean time, the plaintiffs should be permitted to proceed to obtain judgment, and to secure the defendant's appearance eventually to answer it. The COURT were clearly of opinion, that the parties were bound by the law of the 6th of September 1802; that the present case was within the law; and that the suspension of the law, applied as well to the commencement of the suit, as to the issuing of an execution. Moylan, for the plaintiffs. } The rule made absolute. (1) Du Ponceau, and Dallas, for the defendant. (1) The defendant's counsel, proceeding on the grounds above stated, did not make, on this preliminary question, the objection, that the Circuit Court has no jurisdiction of a cause, in which both parties are aliens; an objection that has, repeatedly, been adjudged to be fatal. |