text:
    Brown and Kimberly against Neilson and Bunker.
    In judging whether a vessel has been lost in a voyage insured, the usual, and not the utmost length of such a voyage, is the period’on which the jury is to proceed. If two storms are given in evidence on a policy for time, the one within and the other without the period, it is for the jury to say in which the loss has happened. An insurance made on freight and cargo after a previous knowledge of a second storm, does not conclude a jury from finding that the vessel was lost in a prior storm.
    This was an action, brought after March, 1802, on a policy of insurance for four calendar months, commencing the 28th day of November, 1800, and expiring the 28th of March, 1801, upon the body of the schooner Almira.
    The declaration averred the loss to be by perils of the sea, previous to the termination of the limited period.
    The vessel sailed from Norfolk, in Virginia, on the 4th of March, 1801, bound to New York, and to prove the loss within the time, the plaintiffs offered evidence to show that a violent storm had taken place the day after her departure, in which, they contended, she had perished. To this the counsel for the defendants objected ; but, on its being overruled, the plaintiffs substantiated the fact, and by the same witnesses it appeared, that vessels who sailed with the Almira, arrived in about ten or twelve days, though, that she herself could hardly, with a head wind, have arrived so soon.
    The .usual passage from Norfolk to New York was established to be from five to six or seven days; one witness, a master of a vessel, swore he never knew of an instance above 14 days; from the testimony of two other persons it appeared, that there had been one instance of a safe arrival after being 30 days out, and another after 60. On the defendant’s part, the existence of a severe tempest, all along the New York coast, on the 29th of March, the day after the termination of the policy, was proved. They offered, also, evidence that the assured, when fully ap[*526] prized of the first *s.torm, effected, on the 14th oí March, a policy on the cargo at 4 per cent, and another on the 18th. upon the freight at 18 per cent. This, however, the court refused to admit.
    Upon these facts, the judge charged, that there was not any time fixed by law after which a missing vessel shall be presumed"to be lost; that if the jury thought the vessel was probably lost within the time limited by the policy, they ought, in his opinion, to find for the plaintiffs ; that he thought the rule ought to be, if a vessel did not arrive within the usual limits of the voyage she was prosecuting,
       she ought to be presumed to be lost, and that it would not be reasonable to calculate on the utmost, or greatest limit of it; that they ought to decide, according to their judgment of the greater probability of her being lost in the first storm, or in the last.
    On this the jury found for the plaintiffs, and said, they had calculated interest from the 5th of March.
    A certificate of probable cause for a stay of proceedings having been obtained by the defendants, a case was made on their part; in which the following points were raised :

      1st. That the judge was mistaken in stating the rule of law, as to the presumption of loss from missing vessels.
    2d. That the facts proved were not sufficient to enable the jury to find the loss to have been within the time for which the'Almira was insured.
    3d. That the insurances made by the plaintiffs on the freight and cargo of the same vessel, after they were apprized of those facts, showed they did not themselves consider them as sufficient to warrant the presumption of loss from the storm on the 5th of March, and the evidence of it ought to have been admitted for that purpose.

         The time at which a presumption of loss, from a vessel's not being heard of shall arise, is not precisely established. Each case must depend on the nature of the voyage and distance of the termini. Gordon v. Bowne, 2 Johns. Rep. 150. It is not necessary for the establishing such an inferential claim, to show by witnesses, that the vessel did not arrive at her port of destination. It is sufficient to prove that she has not been heard of in the country from whence she sailed and where insured. Twermloe v. Oswin, 2 Campb. 85. Green v. Brown, 2 Stra. 1190. Newby v. Read, Park, 6th s?*.. 85. But ic, must be made to appear that when she left the port of outfit she . sailed' on tl e voyage insured. Cohen v. Hinckley, 2 Campb. 51.

   On the case being opened, The Court thought there was no ground for staying proceedings, and ordered judgment for the plaintiffs according to the verdict.

Judgment for the plaintiffs.


source: Caselaw Access Project

author: Thompson, J. Kent, J. Lewis, Ch. J.

license: Public Domain

text:
    Codwise, Jun. Ludlow and Codwise, against Hacker
    If a master of a ship be guilty of a breach of orders, by pursuing voyages contrary to his instructions, and invest the proceeds of his freight in articles which his owners take to, this, if accompanied with a declaration that they find no fault with him but for not writing, will be a waiver of any right to sue for damages, on account of disobedience. The acts of a principal are to be liberally construed in favor of an adoption of the acts o. an agent.
    This was an action on the case lor disobediencé of orders.
    *The plaintiffs were owners of a ship called the [*527] Young Eagle, of which they had given the command to the defendant, on a voyage from Hew York to Martinique, from thence to Hew Orleans, and in case nc freight should offer at the latter place for Hew York, then to proceed to the Havanna, and from that port home.

      In Martinique, the defendant was addressed to Messrs Hanoi & Co. with injunctions to consult them in what man ner to best promote the interest of the voyage, and to let their opinions have due weight. The letter of instructions, in addition to this, contained the following passages: “It is our desire that you strictly adhere to the following instructions, which are to be considered as binding on you, ana not to be deviated from. From Martinique you are to proceed with all possible despatch to New Orleans, and there value yourself on Mr. James Garrióle, to whom the ship is addressed there, and to whom you have letters, and then use your interest and address to procure a full freight home to New-York. Should there -unfortunately be many vessels there, loading for New-York, yon must then try whether, offering to take freight on more reasonable and lower terms than the other vessels, would not be the means of procuring you a full freight in preference to them. If so, it is our orders that you take freight at under rate, in preference to returning home in ballast. Although the ship is consigned at New Orleans, you are nevertheless to advise in all matters relative to our interest with the consignee. You must pay particular attention to see whether our consignee attends to our interest in his exertions to get the ship a freight, and if not, you will of course see the necessity of your redoubling your exertions to procure freight, and not to place your dependence on the consignee; you will, therefore, pay strict attention to the foregoing request, as our chief dependence is placed on your exertions. Further, as a last resort, in case you can procure no freight for the United States, you may then take freight for the Havanna, and from thence to New-York, provided you havi one that offers that will answer. You will consult in the Havanna, with Santa Maria Cuesta & Co. Finally, ■p528] if after obtaining the best ‘^information whether freight can be procured or not, and giving the ship a fair chance, by waiting two or three weeks, if none offers, you’ll then return back to this port, with all possible de> spatch. It is our orders that you take freight at under rate, in preference to returning home in ballast, or if a full freight was to offer for Philadelphia, or Boston, or any port in the United States, you might take it.”
    The vessel sailed from. New-York, arrived at Martinique, and, departing from thence, reached New Orleans safely on the 2d of October, 1799. Whether any freight then offered for New-York was not shown. But the defendant procured one for the Havanna, to the amount of 5,225 dollars, with which he sailed in 30 days after his arrival. On the passage, and within six hours’ sail of his port, the defendant wrote, by a brig he met, a letter to the plaintiffs, saying, that if he could get permission, he should go from the Havanna to Campeachy. Having safely reached the Havanna, the defendant received payment of his freight, partly in cash, and partly in a bill on B. Bolf, of New Orleans. With the cash he purchased sugar, which he shipped to his owners in a vessel named the Ohio, and having delivered his cargo, weighed anchor on the 29th of December, 1799, for New Orleans, where he arrived after a tempestuous voyage of 40 days. He there received, on the 8th or 9th of February, 1800, a letter from his owners, dated 2d of January, 1800, ordering him by no means to go to any Spanish port, but rather to return in ballast to New-York. In a subsequent one, directed to the Havanna, dated the 29th January, 1800, and written on the very day of receiving an account current from Santa Maria Cuesta & Co. charging them with 50 boxes of sugar, paid on account oi the freight of 5,225 dollars, the plaintiffs blame the defendant for not writing by every opportunity ; and request him immediately to return to any port in the United States, alleging as a reason, that the rate of insurance on vessels trading from one Spanish port to another, was so high as to run away with everything made. At the conclusion, however, of the letter, the plaintiffs add, “ All the fault we find, and which is a-great one, is your omission and neglect of writing us by every opportunity, and conclude [*529] with, wishing *yoa speedy back.” From New Orleans the defendant wrote, acknowledging the receipt of the plaintiffs’ positive directions to return, but stating, at the same time, the impossibility of his immediate compliance, as he had, .with the proceeds of the bill on Eolf, purchased, on account of the plaintiffs, a cargo of sugar boxes, with which it was his intention to go to the Havanna, and invest the proceeds in a cargo for New-York. In consequence of this, the defendant sailed from New Orleans to the Havanna, where, after a passage of 9 days, he arrived on the 7th of April, 1800, sold his boxes, bought with the amount of the sales a cargo of molasses, shipped them on board his own vessel, set sail for New-York, and reached the quarantine ground in the month of June, 1800.
    The plaintiffs here took possession of the vessel and her cargo, which they sold on their own account.
    It was admitted that the plaintiffs had insured the molasses as their own property, and had also effected policies on the vessel on her' several voyages. The defendant gave in evidence, that on his first arrival at the Havanna, in December, 1799, the vessel was defective in her spars, and the witness who testified to this deposed, that he would rather not have come to the United States than have embarked in her in December. He further added, there was then no convoy for the United States front the Havanna.
    It appeared, however, on the case, that in the 40 days’ passage from the Havanna to New Orleans, the ship, notwithstanding the bad weather encountered, never complained in body or rigging.
    The general veracity also of the defendant’s witness was impeached. From the log-book it appeared, that no mention was made of any fail are in the masts or rigging; that in the last voyage, muck tempestuous weather was experienced off Sandy-Hook, in which water mixed with molasses was pumped up, and sometimes more molasses than water. Some loose declarations of the plaintiffs, made to particular friends of the defendant, were given in evidence, tending in show that the defendant had acted according to the best of his knowledge, and that he was an honest man; confessing also,* that he had taken the bill on Rolf [*530] to purchase a cargo on their account; and that, though they were dissatisfied with his not writing, they never said any thing about his disobedience of orders. The defendant, in addition to this, offered to prove that he had, in every part of his conduct, advised with the correspondents of the plaintiffs, and followed that course they sanctioned.
    The counsel for the defendant contended, at the trial, 1st. That the words in the letter of instructions, “ as a last resort, in case .you can procure no freight for' the United States, you may then take freight for the Havanna, and from thence to New York, provided you have one that offers that will answer,” left the defendant to exercise his discretion in the employment of the ship, in case no freight should offer for the United States.
    2d. That the plaintiffs declaring themselves satisfied with the manner of employing the ship,, and declaring, in writing, that the only fault they found with him was his not writing oftener, was either a waiver of any claim for deviation, or was evidence of the defendant’s having discretionary power of employing the vessel, in case no freight offered at the Havanna. *
    3d. That the season of the year, state of the ship, the want of freight, convoy and advice of agents, formed a justification.
    4th. That the insuring by the plaintiffs of the vessel and cargo from Havanna to New York, and accepting them on their arrival here, and exercising every act of ownership over them, was an adoption of the conduct of the defendant, and a complete bar to a recovery in this suit.
    His honor Mr. Justice Badcliff, before whom the cause was tried, having overruled all these points, charged in favor of the plaintiffs, and the jury found accordingly.
    On these circumstances, and on the four antecedent rea sons, it was moved to set aside the verdict, and grant a new trial.

      Hamilton, for the defendant.
    It will be contended that the facts, as they appear on the case, evince an absolute breach of orders. But we rely that, even allowing [*531] they were broken *in various particulars, there has been an adoption of all the acts. If so, then they will be considered as done on account of the plaintiffs, and the defendant stands excused from answering in damages. This is evident, because in their letter to him, after full information of all that had passed, they not only do not disavow a single transaction, but go so far as to adopt them, by saying the only fault they find with him is, that he did not write. This certainly is exactly the same as saying, we are perfectly satisfied with your conduct. In conversation with individuals the same ideas were, after a full knowledge of all circumstances, in more than one instance reiterated. The expressions of discontent, which the letters of the plaintiff's contain, are all referable to transactions previous to the last letter, and were written before the account of the shipment of sugar by the Ohio had arrived. This was received by them, and sold on their own ■account. Was there no other circumstance to show the plaintiffs’ adoption of the defendant’s acts, this would suffice; but others are presented, from which they cannot escape. ."Knowing all that had happened, they insure the last cargo, that of molasses, on their own account, receive it from Captain Hacker when he arrives,, and sell it on their own account, without ever communicating with him in the least. All of these acts are after a full knowlege of the molasses having been purchased and shipped on their account. In commercial affairs between agent and principal, (for such the parties here really are,) the slightest assent of the principal should be construed as an adoption of his agent’s acts, because it is necessary, from their situation abroad, that they should occasionally act in a Iatitudinary manner. If what is thus transacted be bona fide, the most trivial circumstance should be seized by this court, to say it is a ratification of all that has taken place. The court will see that this rule ought to be strictly enforced against the principal. Its being so will not in the least infringe on the rule of law which makes the agent responsible. If the principal desires to enforce it, he is at perfect liberty so to do ; but if he does not take his position on the rigid letter of legal doctrine, any equivocal act ought to be deemed an assent. It is his duty to disavow by some open act. *In other countries this is invariably the [*532] case; the principal, by some judicial process before a notary, protests against his agentand this is a sufficient proof of the disposition with which any subsequent act is done. Though our jurisprudence does not know any tribunal to have recourse to for this, yet some method ought to be pursued to show the quo anima of the principal in taking goods, if he does not mean to be bound'. He should not lay by and wait events; if the result be favorable abide by them, if unfavorable refuse; this would be mala fides. But let that be how it will, the reception of the cargo by the Ohio, the insurance, and sales by the plaintiffs, are conclusive against them. Little stress can be laid on the circumstance of that cargo being the amount of their own proceeds, because, if so, it legalizes the voyage. The court will not permit any one, when an agent has acted contrary to orders, to insure the subject matter as his own, and call on the underwriters to pay when he had an intention to consider it the property of another; for it would be a fraud on the underwriters. ' The state of the cargo ought to be declared, or the insurance made for whomsoever it may concern; for no man can, in his contracts, have various intents on the same subject. It is no answer that the principal might, for caution, secure himself; so he may, by taking the property into possession ; but he ought not to sell, for then the act of sale is decisive, if made as his own; especially when the agent is on the very spot; for he might then, on a disavowal of his acts,'have paid them* their money and taken to his goods. Either, then, the plaintiffs converted the property, or received it on their own account, and thus ratified the principles of the voyage. The court will not allow them to say they converted, because no man shall be permitted to say he is a wrongdoer, when his conduct will bear an innocent construction. For the general principles which govern in cases of adopting the acts of another, the court will find all that has been advanced fully confirmed in Smith v. Cologan,

       1 D. & E. 188. (a) Against this we are aware Cornwall v. [*533] Wilson, *1 Vez. sen. 509, may be cited; in that case, however, when the goods arrived they were disavowed; and it was from the subsequent acts that even the disavowal was controlled by acts like these, for there the goods were insured and sold by the principal. Instead of the disavowal as there, in express terms, we here find the plaintiffs acknowledging themselves contented with the defendant’s general conduct, and dissatisfied only with his not writing.

      Hopkins and Harris, contra.
    The present is a simple action by a shipowner against his captain for disobedience of orders. It is not a case between a merchant and his factor, but of a master against a servant employed to do a sp< cial act, and no more. Here the defendant was engaged for a particular voyage, which the plaintiff calculated would expire at a certain time, at which period, he counted on being able to employ his vessel in another service. The case states the connection between the parties, and it is unnecessary to read it. But the facts show an original intention to deviate from instructions; for, when off the Havanna. and going into that port in obedience to his orders, he writes a letter to the plaintiffs saying he should go to Cam-peachy. After this, any expressions from them, evincing no thorough disapprobation, can be deemed no more than a matter of prudence to get back their vessel. Her various voyages, the facts in evidence prove, were not from a disability in her rigging to encounter this coast. The defendant was clearly a servant^cting under orders ; to enable, however, the plaintiffs to have recourse against him for a breach of these orders, it is said they must abandon the property about which he was ordered to act. This is really new law. For surely it is not a principle, that where an owner of property sues his agent for misfeasance respecting that property, he must abandon the property or its proceeds to entitle him to his action. Or if a bailee misuse goods bailed, must the bailor relinquish the goods before he can institute a suit? or should he take them back, is his right of action gone? We conceive, unless the law is widely mistaken, that he may take back his property, and *then have recourse to his action for [*534] damages, without trusting to the personal responsibility of the defendant for every kind of recompense. Suppose a ship and cargo to the East Indies, consigned to the captain, who grossly disobeys; on his return are. the vessel and proceeds to be given up, if compensation for damages is sought? This would make it an affair of calculation, in which the loss must be balanced against the means of the defendant. The plaintiffs seem to confound original property, owned by a principal, and intrusted to orders, with orders given to acquire property by their execution ; they want to set up the taking back a man’s own from his servant, as the adoption of the acts of a factor in purchasing goods. It is said, however, that the court ought to lean in .support of acts of adoption in favor of the agent, and against the principal, if the conduct be bona fide. However that may be is indifferent to the present question, which is simply dssumpsit, charging no fraud, but a mere breach of duty in not performing the orders he undertook ■to obey. For doing which he shows no kind of excuse ; and as every misfeasance is, in presumption of law, mala fide, some justification ought to appear. Ho argument.of approbation can be drawn from a few concluding words in one of the letters. The whole tenor of the correspondence, on the part of the plaintiffs, shows dissatisfaction, and not only repeated complaints of jais disobedience, but continued injunctions to obey the orders given him. When it is considered that the defendant was abroad with the property of the plaintiffs, and that property so easily moved from place to place, the court will see the necessity and caution that the plaintiffs were obliged to use, in concealing their intention from a man who was violating every direction he received. This will easily account for all those expressions, either in writing or conversing, which seem to imply no blame. The insurance was rightly made, because the plaintiffs did no more than insure their own, and, of course, taking back their own cannot waive any cause of action which .they had for disobedience of orders. On this very point the court will see the case from Yezey directly in favor of the plaintiffs; and that every insurance [*535] is for the benefit *of all whom it may concern, the face of every policy shows. In the citation from Durnford & East, there was an express approbation ; so that, taking the present case every way, it makes.against the defendant. This is an action for breach of orders. Those orders the case states explicitly, nor do they admit of any deviation. -Even the advice of the correspondents of the plaintiffs can be no excuse, for they were to be consulted only on the manner of carrying the orders into effect, not whether they were .to be totally laid aside; for, with respect to one, the defendant was absolutely put on .his guard, and cautioned. But the formality of this sanction cannot be pretended, for the letter of the defendant, written off the -Havanna, declares an avowed plan of disobedience. Qf this, at the time of the conversations and letter rdied on, the plaintiffs were ignorant. They, therefore, could never have approved what they did not know. Besides, they took place with third persons, and can therefore never be applied to a ratification of what passed with another. The doctrine contended for is this, that if a captain of a vessel employ her, contrary to all the orders of his owners, and defeat every plan they and arranged, yet if they take ivhat has been purchased with the earnings of their own property, the captain is exonerated from all responsibility for the misuse of it. The fact is, the owners take back no more than their own; and at the utmost it can go only in mitigation of damages. Suppose a cargo tent to be sold at a certain, price, and the consignee sells at an under rate, if the proceeds be received, shall the party be prevented from recovering the excess which it might bo shown could have been gotten; should the court sanction the reasoning on the other side, a master of a vessel may go on from voyage to voyage, employ himsélf for ten years, and if his owners should take back their own vessel and her freight, he not only ceases to be responsible for a breach of orders, but his acts are adopted, and he, of course, becomes entitled to wages for the whole time. The result oí such a position must be ruinous to all commerce, and it is not to be supported by any authority whatever. In 13 Vin. 6, 7, 8, the court will see that accepting an article purchased, or the proceeds of one'sold, is not always a re lease of damages arising from disobedience of orders.

      *Hamilton: in reply.
    The defendant was more [*536] than a mere master sailing according to his letter of instructions. He had a general discretionary power over the vessel, and was, in various situations, to act as ha thought fit. The question, then, does not resolve itself into a strict compliance with orders, but whether there has been a bona fides, in which case, there is always a great allowance made. It was offered at the trial to be pr< >ved that every step taken by the defendant was with the concurrence of the plaintiff’s correspondents; this alone is enough to evince that good faith, which will lead the court to construe every act of the plaintiffs as done in a spirit of adoption, for in no one instance do they allege a breach of orders. We contend that the having received the-freight is an adoption of the acts by which it was earned, and exonerates from all responsibility on account of disobedience.

      а) This was an action by a principal against his agdht for breach of orders in making insurance; one of the plaintiffs, whilst the execution of the orders was depending, had the state of affairs submitted to him, and approved of all that had been done. This approbation, with full knowledge, was held nn adoption of the agents acts, and that the plaintiffs had to look to the underwriters.

       In that case the principal insured, but the act of insuring to the port of original destination was explicitly held not to be an adoption. Hor was it between master and owner. It was an order to a factor to buy goods on account of the defendant, who, when they arrived, resliipped them to be sold at another port. They were disavowed on account of the price at which purchased being greater by 25 pounds than that limited, and the factor saved 50 pounds on the freight. See the ease.

   Thompson, J.

This was an action on the case brought by the plaintiffs against the defendant, who was captain of a ship in their employ, for breach of orders.

On the part of the defendantit was alleged, that the instructions vested some discretionary powers in him; but that, admitting he had violated his instructions, still the plaintiffs have, by their conduct, adopted his acts, and thereby waived all claim to compensation. The general principles of law, as applicable to cases of this description, are not controverted. There can be no doubt but that a captain is responsible in damages to his owners for disobedience of orders; and there can be as little doubt but that the owners may adopt such acts as would be deemed a violation of instructions, and thereby waive all claim to damages on that account. The great difficulty arises in the application of the law to the case before us. The original instructions of the plaintiffs are very particular, and seem not to give any great latitude to the exercise of discretion. They say, “It is our desire that you strictly adhere to the following instructions, which are to be considered as binding on you, and not to be deviated [*537] from.” They then proceed *to point out the yoj‘ age, and the conduct to be observed by the captain. It-appears to me, clearly, that the defendant’s returning te New Orleans from the Havanna, instead of coming to New York, was a breach of orders. But the most important question appears to be, whether there has not been a waiver by the plaintiffs of their claim for damages. The circumstances relied on by the defendant, to show that his acts have been adopted by the plaintiffs, are various. Their force and importance will depend much on an accurate attention to dates. I would, in the first place, observe, that there is no pretence but that the defendant acted in good faith, and in a manner, as he supposed, best calculated to promote the interest of the plaintiffs. The great confidence which they uniformly, in all their letters, avow to repose in him, even after a breach of the orders, as appearing in the case, afford a strong presumption that the defendant, at least, if not the plaintiffs themselves, supposed he had some descretion left him as to the employment of the ship. These considerations ought to induce us to give the most favorable construction to his acts. The defendant, by letter of the 25th of November, 1799, when at sea, on the voyage from New Orleans to the Havanna, informs the plaintiffs, “ that if, on his arrival at the Havanna, he finds no advice from them, he intended to go to Campeachy, if he could get permission. If he could not, he should run down to New Orleans for a freight home.” This communication is unaccountable, if the defendant supposed no discretion left him, and that he was bound by the strict letter of his instructions. He probably placed great reliance on that part of his orders which expressed so much confidence in him, and declares that the chief dependence was placed on his exertions. It does not appear that the defendant received any advice whatever from the plaintiffs while at the Havanna, the first time. Their letter directed to him at that place, bears date the 28th day of November, 1799, the very day he arrived there, and there is no evidence that he received it before he left that place, which was on the 39th of the ensuing month,- on his voyage back to Hew Orleans. It does' not appear that any freight [*538] offered for the United States, or that the *Oaptain , sought for any. The plaintiffh, by letter, dated the 2d of January,-1800, acknowledge the receipt of the information from the captain that he proposed going to Campeachy, or returning to Hew Orleans, and they greatly lament such determination, on account of the high premiums of insurance on that voyage, but say nothing about his having broken his orders. Again, by letter of the 29 th of January, 1800, the plaintiffs complain much of the defendant for not writing oftoner, and advising them of his situation, so that they might keep'the ship and cargo covered by insurance. This letter, which may emphatically be styled a letter of complaint, is so far from containing any suggestion of a violation of orders, that it expressly declares, “ All the fault we find (and which is a great one) is your omission and neglect of writing us by every opportunity.” When this letter was written, the plaintiffs had full knowledge of the situation of the ship; they well knew that the defendant was pursuing a different line of conduct than the one they had marked out for him; still they found no fault with this: the only complaint was, that he did not keep them advised of his situation, so that they might secure themselves by insurance. And by the testimony of Mr. Bloodgood, it appears that, in the month of February, 1800, and after the plaintiffs knew of the defendant’s intention of going from the Hávanna to Hew Orleans a second time, Mr. Ludlow, one of the plaintiffs, declared that Captain Hacker was an honest man, and that he believed he did the best for their interest, and the only fault he found was his not writing. He made no complaint of disobedience of orders. These acts and declarations, I think, afford an irresistible conclusion, that the plaintiffs intended to adopt all the acts of the defendant of which they were apprized the beginning of February, 1800. These acts included the voyage from the Havanna to Hew Orleans. It remains to be examined whether the plaintiffs have, by any subsequent conduct, adopted the acts of the defendant after that time. It appears by the defendant’s letter, dated at Hew Orleans the 23d of February, 1800, he had received the plaintiffs’ letter dated the 2d of January, 1800, wherein they gave him positive orders to come immediately home with the ship. *But by the same letter he [*539] apprizes them that he had previously purchased a cargo on their account, from which he could not retract, which made it necessary for him to proceed on the same route he went before. And by another letter of April the 19th, he apprizes them of his arrival at the Havanna a second time. After this, we find the plaintiffs insuring this ship and cargo, as their own, on the voyage from the Havanna to Hew York. On her arrival at Hew York, they took possession of her, sold the cargo, received the proceeds, and treated them in every respect as their own. This conduct it appears to me, is conclusive to show that they considered the reasons assigned by the defendant for going to the Havanna a second time, as sufficient; and that they intended to adopt his acts. In the case of Smith and others, v. Colgan and others, 2 D & E. 188, in a note, it was decided by Buller, J. that where a principal, with knowledge of all the circumstances, adopts the acts of his agent for a moment, he ought to be bound by them. So also, in the case of Cornwall v. Wilson, 1 Vez. 509, where a factor in the purchase of goods had exceeded the price limited, yet the principal received the goods, and disposed of them as his own ; and it was held that this was an adoption of the factor’s act,' notwithstanding the principal, by a letter, had expressly disavowed receiving the goods on his own account. Lord Chancellor Hardwieke declares the principal concluded by his own acts; by taking the goods to himself, and treating them as his own; and that these acts, being subsequent to the letter disaffirming the contract, explained the nature of the whole 'transaction, and the intent with which he acted. These. I think, are salu' tory principles, and such as the facts before us will fully warrant us in applying to the present case. I am therefore of opinion a new trial ought to be granted.

Kent, J.

There can be no doubt, I think, but that the defendant was guilty of a breach of orders, in returning back to New Orleans from the Havanna. Here the deviation from his instructions commenced, and the only question is, whether the plaintiffs have, by their acts and declarations, ratified his conduct, and precluded themselves from the present suit. The rule is, that if, with a [*540] knowledge of all its circumstances, *a principal adopts the acts of his agent, he is bound by them. 2 D. & E. by Buller, J. 1 Vez. 509. This principle was recognized by this court, in the case of Towel & Jaclcson v. Stevenson, 1 Johns Cas. 110, decided in October term, 1799. In that case, the defendant received a bill of exchange to collect for the plaintiffs, and to enable the endorser to secure himself, he surrendered it up to the endorser, without receiving the money, and consequently, made himself liable. This fact was afterwards disclosed by him' to the plaintiffs, who, without any express discharge to him, or ratification of his act, assumed the business of pressing the endorser for payment. The endorser failed, and this 'assumption of the business, after a full disclosure had been made, was held to exonerate the defendant. The defendant, in the present case, seems not to be liable to the charge of any intentional wrong. Although the great outline of the voyage was prescribed to him, he was, in every other respect, left with large discretionary powers. It is admit ted, as not liable to dispute, that an explicit approbation of the conduct of the defendant would be a waiver of any remedy on the part of the plaintiffs; and are not the circumstances in this case equivalent to such approbation? When a factor is entrusted with large power, requiring the exercise of much sound judgment, and he acts with an honest, though misguided zeal, for the interest of his principal, it is just and politic to construe the acts of the principal pretty liberally in favor of an adoption of those of the agent. After the plaintiffs had full knowledge of the defendant’s second voyage to New Orleans, they insure, on their own account, the cargo and freight of such second voyage, and of the subsequent voyages back to the Havanna and to New York. They receive, sell and take to themselves the proceeds of the molasses, which were an investment by the defendant at the Havanna of what was to be traced back, as the result of part of the freight of the first voyage from New Orleans to the Havanna, and which molasses the defendant had shipped to the plaintiffs as for their account. They declare by letter to the defendant, that they have full confidence he would use his best endeavor to promote their interest, and that they find no fault with him, *except in his neglect in [*541] not writing to them, and they declared the same to other persons. These acts and declarations amount to something more than an equivocal adoption of the defendant’s acts — they are a clear and intelligible approbation. The molasses were the result of a conversion by the defendant of the freight, and yet the plaintiffs accept the molasses, as shipped on their account, and sell them as .their own. During all these acts, there is not a disavowal in any shape of the defendant’s conduct. In the case of Cornwall v. Wilson, 1 Yez. 509, the factor, in the purchase of hemp, exceeded his limited price. The principal, by word, refused the contract, as he had a right to do, but he still took the goods to himself. He acted with them as his own; sold them as his own, and not as factor for his factor. Lord Hardwicke held that notwithstanding what he said, he meant to take them as his own, and decreed, accordingly, that the principal was bound by the price given. The present case is certainly as strong for the defendant, and I am of opinion that the plaintiffs have sufficiently sanctioned the defendant’s departure from his instructions, and are not entitled to recover against him on that ground. The verdict is accordingly against evi donee, and ought to be set aside, on payment of costs.

Lewis, Ch. J.

The plaintiffs, as owners, prosecute the defendant for breach, of orders, as master of their ship Young Eagle.

The defendant has committed a breach of those orders, and for this he is liable in damages, unies justified by the peculiar circumstrnces of his situation, or discharged by the subsequent conduct of the plaintiffs.

The state of the ship created no impediment. She was completely repaired at New Orleans on her first arrival there. The season of the year was a fact known to the owners at the time they gave the instructions. The want of freight and convoy cannot form a justification, as they wére not events by which the conduct of the voyage was to be influenced.

For a discharge, on the ground of the plaintiffs’ having adopted his acts, the defendant relies on certain conversations between Mr. Ludlow and Mr. Bloodgood, [*542] the letter *of the plaintiffs of the 29th of January, 1800, their procuring insurance on the unauthorized voyages, and their receiving and selling the cargo of molasses he brought from Havanna to New York. The substance of these conversations, was that Mr. Ludlow believed Mr. Hacker an honest man; that he did the best for their interest; and that the only fault he found was his not writing. When these conversations took place does not precisely appear, further, than that one was about the 6th of February, 1800, the other in the spring of that year. The letter of the 29th of January is to nearly the samé effect; containing a declaration that all the fault they found was the defendants omitting to write to them.

It must be remembered that at the time of these conversations, and of Writing the letter of the 29th of January, it does not appear that the plaintiffs knew of his having actually committed a breach of orders. They only knew he contemplated it when at sea on the 25th of November,- in the event of his not meeting at Havanna with advice from them. This cannot, then be construed into an approbation of conduct, of which they probably were ignorant. But were it otherwise, the approbation relied on to excuse malconduct, where by paroi, merely, ought to be unequivocal and explicit; and a mere declaration of a belief in the honesty and integrity of the defendant, and a refusal to complain of his conduct, cannot be sufficient; Many an honest man has committed errors which have rendered him liable in damages, and many an injured one has refused to complain.

The acts of the plaintiffs remain to be considered. Their procuring insurance on the unauthorized voyages, and their receiving and selling the molasses. I can discover no prinprinciple on which either of these acts can be construed into an adoption of the conduct of the defendant. It would be a regulation ruinous to commerce, if whenever á portion of a merchant’s property is sacrificed by the unauthorized acts of the master of his ship or consignee, thát he should be obliged to jeopardize the remainder, before he shall be entitled to a recovery in damages. In the present instance, the owners’ property, in neither the vessel, her cargo, nor her earnings, *was in [*543] any wise changed by the conduct of her master. They were, therefore, perfectly correct in what they did, and their right to recovér remains unimpaired. I am of opinion the defendant také nothing by his motion.

New trial granted.

       See Delafield. v. State of Illinois, 26 Wend. 192; Lawrence v. Taylor, 5 Hill, 107 ; Moss v. Rossie Lead Mining Co., 5 Hill, 137; Caines v. Blecker, 12 J. R. 300; Vienna v. Baulay, 3 Cow. 281; Towle v. Stevenson, 1 J. C. 110 Armstrong v. Gilchrist, 2 J. C. 424.


author: Livingston, J.

text:
    *The Mayor, Aldermen and Commonalty of the City of New York against Scott.
    The act of the legislature 011198, re-enacted on the 3d of April, 1801, contains no implied grant of the soil under water, therein mentioned, to the corporation of New York. They are under that act only attorneys for the public. The reservation in their resolve or by-law, of June, 1801, of the slipage arising from piers, erected under grants, made by them, in pui suance of that law, is void. The corporation has no right to slipage on the piers, running into the East River, in front of South street. A slip is an interval or vacancy between two piers. • In an action for money had and received, the plaintiff must show a right in himself
    This was an action commenced in the justices’ court of the city of New York, to recover 18 dollars and 50 cents, for wharfage. The suit being removed into the supreme court, a verdict was, by consent, entered for the plaintiffs, subject to the opinion of the court, on a case, which was shortly this:
    The lands which the corporation of New Yoi’k, under their charter, hold on Manhattan Island, and within the city, extend to low-water mark, and four hundred feet beyond that, in the Bast Eiver. To these are annexed, “ the right, benefit, and advantage of all docks, wharves, cranes, and slips, or small docks within the city, with the wharfage, craneage, and dockage, and all issues, rents, profits and advantages arising, or to arise, or accrue, by, or from, all or any of them.” By an act of the legislature, passed on the 7th of March, 1793, it is declared, that “all the right, title, interest, claim and demand, of the people of this state, of, in, and to all lands, at any time heretofore left for streets or highways, in the city of New York, by any person or persons whomsoever, shall be, and hereby is, vested in the Mayor, Aldermen and Commonalty of the city of New York, and their successors, for the use of streets and highways.”
    In the various grants by the corporation, of their watei lots on the north-easterly side of the coffee-house slip, they had given in fee, the right of wharfage in front, and in consideration of erecting certain piers, given to their granees for 20 years, the wharfage, &c. of the south-westerly tides of such piers, provided they should not grant away the water-lots on that side, which they reserved to themselves a right to do, in which case the wharfage on the south-westerly side was to cease.
    The corporation having granted away the whole of the . land to which they were entitled, under their char- . ter, applied, *in April, 1798, to the legislature, [*544] for an act to authorize them to run streets or wharves, of 70 feet width, in front of the water-lots already granted. This, by a law of that month and year, (re-enacted on the 3d of April, 1801,) the legislature was pleased to grant; and by the same act, the proprietors of lots on the front of which the streets or wharves might run, were to fill them up, and make piers, according to the directions of the corporation. On non-compliance, the corporation were to be at liberty so to do, and receive the wharfage to their own use. It was also further provided, that the cor poration might grant to such proprietors, in fee, a common •nterest in such piers, in proportion to the breadth of their •espective lots, under such restrictions, and within such knits, as the mayor, &c. might deem jpst and proper.
    In pursuance of the authority conferred by this act, the corporation laid out a street, called South-street, in front of the lots they had granted, joining the Bast Biver, and on the 1st day of June, 1801, made a by-law, or ordinance, by which they ordered the respective owners of lots, fronting and bounded on South-street, from the Wall-street slip to the Fly-market slip, to make a pier on the northeast side of Wall-street, and complete it, according to the directions therein given, before the 1st day of November, 1802; on doing which, the corporation would grant the piers to the owners of the said lots, “ reserving in the said grants the exclusive right, in the corporation of this city, of wharfage . and slipage, on the..side of each pier, adjoining a public ■slip, and that the said piers be, in all respects, considered „as public streets or highways, and maintained and kept in .repair by the grantees, their heirs and assigns.”
    Previous to the passing the act of April, 1798, the corporation had laid out the plan of South»-street, and had granted to the proprietors of lots; bounded by the East River, the vacant water-lots between them and South-street.
    Among the grants thus made, there was one the 10th of May, 1797, to John Murray, under whom the defendant claimed.
    By .this grant, Murray, was to make a wharf, or street, of 70 feet in width, along the yvkole front of the lot [*545] granted *to him, (which w,as to be South-street,) and another of at least 25 feet, along the whole west side of the same lot, and of the street, of 70 feet. The same to be and remain public streets; in consideration of upholding, maintaining, and keeping of which in good and sufficient repair, he was to have all wharfage, &c. accruing or arising, by or from the same fronting the East River, or by or from any part thereof.
    Murray accordingly built the wharves and streets, specified in the grant, and also, under the direction of the corporation, a pier running in front of South-street, into the East River, the south-west sides of which, and of the wharves and streets ho had erected, are bounded by, and in a line with, Wall-street slip, which runs in front df Wall-street, and the wharf of 25 feet, built along the south-west sides of South-street, and the lot granted by the deed of IQth May, 1797, to John Murray. This pier, so erected, was not only opposite to the water-lots mentioned in the indenture of 1797, but ran about five feet more to the south-west, upon lands within the bounds of the city, as expressed in its charter, and opposite to the wharf, covenanted in the grant to be built by Murray, which land, however, was not granted to the corporation by their charter.

      The pier, from the time of its being made, had been uphcld .by Murray, and no grant of a common interest in it had been made by the mayor, aldermen, and commonalty, agreeable to the act of the legislature already recited.
    The sole question was whether the defendant, to whom, by mesne assignments, the rights of Murray had been conveyed, was entitled to the wharfage on the southwest side of the pier, which ran in front of the five feet of the city lands. If he was, then a .nonsuit .to be entered.
    Riggs, for the plaintiffs.
    The inside of all public slips have been constantly reserved in the corporation grants for the sake of convenience to the city, that its supply by market boats, &c., might not be .impeded. They are under the control of the plaintiffs, and have, in many instances, as in the present, been widened, that they might -be the more effectually cleansed by the tide. For this purpose, in the act of 1798, *the piers (which form [*546] the slips) are under the direction of the corporation. By this act a grant to the plaintiffs of the land,. on which the new piers, in front of South-street, were to be erected, must necessarily be implied; for they are authorized to grant a common interest in them to the proprietors of lots in front of which South-street ran, according to the respective widths of-the same, .under.such restrictions and regulations as the corporation may think proper. They could not grant what they had not. Besides, this implication is acknowledged by John Murray. He, therefore, and those under him, are estopped from controverting it. He built under an ordinance exercising the right of an implied grant, bymaking reservation, in the true spirit of all the former grants of the corporation, and for the same beneficial .purposes. It may further be observed, that by running a line from the extreme south westerly.point of John Murrayls lot, it will not strike the place, for .wharfage at which the plaintiffs insist on a right.

      Troup and Hamilton, contra.
    The act gave no beneficial interest to the corporation. They were simply trustees, or rather attorneys, to grant to others a right, in consideration of a service or duty performed. This duty was the erecting the pier, and created a consideration for the grant. Therefore, the reserving a portion of the emoluments was so far illegal and void ; for a trustee cannot take to himself, and withhold from his cestui que trust, part of the subject of the trust. Allowing, then, an interest to have passed by implication, it was fiduciary. Then, although the act au- . thorizes them to grant under such restrictions, and within such limits, as they may think proper, still this is no more than a power to regulate the mode and place of enjoyment; for restriction can never signify a right of acquisition. To show how completely the building of the pier was the consideration for the wharfage; whoever did erect was to have the profits; and, on this principle, when made by the corporation, after neglect of the proprietor of the lot, they were, on performing what he was to have done, to step into his place, with a full title to wharfage. We admit we have no right to wharfage in the slip, because the wharf [*547] there was on soil the property of the * corporation, and they might, in that instance, reserve. _ The present reservation is a manifest attempt towards a breach of trust, at the expense of the object for whom it was created. The action is for money had and received; the court, therefore, will recognize all equitable rights which we may have. We cannot be estopped by the ordinance, for we are not parties to it by sealing and signing.

      Riggs and Harison, in reply.
    This is a cause in which the public convenience of the city of New York is deeply interested; therefore, the act and grants must be liberally construed, with that object always in view. For public benefit was the reservation of wharfage and slipouge, on the inside of public slips, originally made. This would be entirely defeated by the defendant’s claim; for if he has a right to wharfage on the side of the pier next to the public slip, he will have a right to lay a vessel outside of that, fastened to the pier, and another outside of that, so as to obstruct, if not entirely fill up, the access to the public slip. This shows the necessity of implying by the act a grant to the corporation of the soil under water beyond the 400 feet mentioned in their charter. The construction put on the words “ restrictions,” &c., cannot be correct, for the mode and place of enjoying wharfage rights is, by an express distinct law, under the regulation of the harbor master. In the rights, as expressed by the ordinance, there is an ample consideration for building the piers, for the persons thus doing so, have the emoluments arising from the sides adjoining to private property; as in the present case, those on the northeast side within the basin. This is further proved by the sense of the legislature, expressed in an additional clause when the act of 1798 was re-enacted, previous to which time the proprietors of lots were entitled only to a community of wharfage in front of their properties ; but, by the clause alluded to, the corporation were empowered to grant, under the restrictions we contend for, that community of interest mentioned in the law.
    The counsel seem to forget that a man may be estopped by his actions as well as by his deed. Having no original interest *of his own, Murray acts under [*548] our title, such as it is, and cannot now be allowed to dispute it.
   Livingston, J.

delivered the opinion of the court. This is an action for money had and received by the defendant, as wharfage, for vessels lying in what the plaintiffs call a slip, adjacent to that part of a pier which stands opposite Murray’s wharf. From the form of action the plaintiffs must show a title in them to demand this money. It is, therefore, unnecessary to inquire whether it belongs to the defendant or not. The corporation can have no such right, inasmuch as the land, on which the pier is erected, was never granted to them, nor was the soil under the watei where the vessel lay, for which this wharfage was paid, lío implied grant is contained in the act of the legislature. The corporation are only to grant as attorneys of the public, in case piers are sunk. That this is to be done under certain restrictions and regulations, means, not that they shall have a right to reserve the wharfage to themselves, which is to be theirs only in case of default in the owners of the lots in sinking piers, but that they are to regulate in what manner the right to wharfage shall be enjoyed, liar does the resolve of the common council of the 1st of June, 1801, make a difference. The reservation therein contained, if in an indenture, might have been binding on the defendant; but the corporation having exceeded their powers in making this reservation in a resolve of this kind, it cannot be binding on him. They had no right, in this way, to impose any terms they pleased, or they might arbitrarily have deprived the owners of lots of the right, which the legislature intended they should have, of sinking these piers. It cannot, therefore, be regarded in the light of a contract; for the defendant had a right to make these piers and bridges without thereby sanctioning any terms which might thus be imposed on him. liar can it be said that the corporation not having executed the powers vested in them by the act, the individual has no right to receive the wharfage. This would be to take advantage of their own wropg and neglect; nor does it follow, as has already been observed, that the money belongs to the corporation, if it be admitted that the defendant was wrong in taking it.

*This is no slip, which is an opening between two pieces of land or wharves. ' This pier extends into the Bast River, and is 20 feet from the side of the slip. The grant to John Murray, of May, 1797, is also important, for by this he is entitled to the wharfage of 98, feet.

It is the opinion of the court that the defendant have judgment.

Judgment of nonsuit.


author: Lewis, Ch. J.

text:
    Blagge against The New York Insurance Company.
    Property warranted to be neutral, must not only have every document necessary according to treaties and the law of nations to prove its neutrality, but it must not be accompanied with any papers that compromit its neutral character. Ifj under such a warranty on goods, the outward cargo appear to have produced less than the homeward has cost, the assured must, in a voyage from a belligerent country, show that the excess was derived from deutral funds.
    This was an action on an open policy of assurance, dated the 18th of May, 1799, at a premium of 10 per cent, for the sum of 20,000 dollars, on the cargo of the ship Flora, James Lovett, master, at and from Carthagena, or any other port on the Spanish Main, to Hew York. The instrument contained the usual clause against illicit trade, and at the bottom the following memorandum was written.
    “ Warranted American property, proof of which, if required, to be made in Hew York, risk of seizure or detention in port excepted.”
    Bisk of seizure, &c. was in a separate line, but there was not any stop between the words.
    From the ease made, it appeared the master of the Flora was formerly a joint owner with the plaintiff in a schooner called the Betsey, and had, in February, 1798, sailed in her to La Güira with a cargo in which they were mutually interested; that on his arrival there the market was overstocked, and, hearing that the port of Carthagena was opened for the admission of neutrals, he proceeded to that . place, off which he got on shore. His information proving untrue, he was, on being carried into the harbor, seized and condemned for approaching the coast with a design to trade contrary to law. After a very considerable time, he, on an appeal to the viceroy, obtained a reversal of the sentence, and an order for restitution. During his stay, he became acquainted with one Thomas Andrew Thorres, who proposed to him a system of commercial intercourse, for the purpose of introducing into Carthagena, in American bottoms, goods from the United States under the sanction of the royal order of His Most Catholic Majesty of the 17th Hovember, 1797. [*550] *To accomplish this, it was not necessary that the articles should appear to be Spanish property ; and to eifect this, it was agreed that they should be consigned to Thorres as his own property, shipped for him by Blagge, his agent in Hew York, and that Thorres should have one fourth of the net proceeds for lending his name in the transaction.
    In consequence of this, and the advantage which the speculation held out, Blagge, in April, 1799, sent, on his own account, a cargo amounting to near 70,000 dollars, by the ship Flora, to Carthagena, where she arrived about the 6th of May following. She there disposed of her cargo for 120,000 dollars, and in part return took in cotton, fustic, 21 ingots of gold, and 3,500 milled doubloons, to the value of 85,000 dollars in the whole, leaving, to pay duties and be collected, the remainder of the sales, in Thorre’s hands, and outstanding debts. Being thus loaded, she set sail with a clearance for Cadiz, stating her loading to consist only of the cotton and fustic, on the risk and account of Don Emanuel Grarcia del Bio, and also with a clearance for Hew York, but granted by another officer, without specifying on whose risk the cargo was shipped. In neither the one nor the other was any mention made ot the ingots or doubloons; though Lovett signed, in Carthagena, bills of lading to the supercargo, for delivering both in Hew York; and for landing the cotton and fustic in Spain, Thorres gave a bond in a very considerable penalty which could only be cancelled by production of a certificate of- its having been duly discharged in some European Spanish port, or on proving, by evidence, that the vessel had been captured and condemned in some British.
    After the Flora left Oarthagena, the master, as appeared from his depositions, made out an account of the sales of the outward cargo, which he stated at 55,000 dollars, and an invoice of the homeward cargo,' which exactly balanced that sum, totally omitting any statement of the bullion or coin on board. Thus circumstanced, the Flora had proceeded on her voyage something within the cape of Florida, when she was captured by a British ship of war. On being boarded, the master showed only his fictitious invoice, clearance, and other papers for New York, excepting *the bill of lading for the ingots [*551] and doubloons. On being questioned whether he had any other cargo than that mentioned in the fictitious invoice, or any other papers tho,n those relating to the New York destination, to both he answered repeatedly in the negative. On a strict search, however, the captors found secreted on the person of Lovett, and in the vessel, the clearance for Cadiz, declarations of Thorres that the property belonged to Don Emanuel Garcia del Bio, the custom-house bond for landing the cargo in Cadiz, and several letters giving directions how to cover the shipments and returns, so as to avoid the effect of the royal order of 17th November, 1797, and also one to the plaintiff from Lovett, written immediately after his arrival at Oarthagena, in which he said, “ he had delivered the cargo to the owner.” The captors having also discovered the bullion and doubloons, carried the Flora into Jamaica, where she was duly libelled in the court of vice-admiralty. In the answers on oath of Lovett and Paschal N. Blagge, to the standing and other interrogatories exhibited to them they swore positively that the outward and homeward cargo (excepting a few adventures of themselves and one Drake, who had been supercargo in the voyage to Carthagena) were the whole, sole and exclusive property of the plaintiff, a citizen of the United States; that the appearance of its being Spanish was entirely fictitious, but indispensably necessary to its introduction into Carthagena under the royal order of 1797 ; for had any other name than that of a Spaniard been seen, the whole cargo would have been confiscated. That the clearance for Cadiz, or some other Spanish port, and’ custom-house bond to land the articles, were the only means of clearing out, but that he (Lovett) understood a simple letter from him, stating his capture, would have been sufficient to cancel the bond, and that the reason why the bullion and doubloons did not appear in the papers granted at Carthagena was, because the exportation of bullion and specie from the Spanish colonies is prohibited, the whole on board having been smuggled into the ship by himself and Paschal JST. Blagge, at the risk of imprisonment for their lives if discovered. That they were not mentioned in the invoice of [*552] the cargo, from an *apprehension lest the knowledge of so much treasure on board should excite the known cupidity of the British crusiers, and be a certain inducement to capture, but that the whole was the exclusive property of the plaintiff, Thorres never having had any interest in the articles, was merely allowed a fourth of the net proceeds for lending his name to intro-, duce the cargo under the royal order of 1797. The cargo, however, being condemned “ as good and lawful prize,” the present suit was brought against the defendants, for the amount of their subscription, and the jury having found for the plaintiff, a motion was now made to sot it aside and grant a new trial, the verdict being against evidence.

      Hoffman and Hamilton, for the.- defendants.
    The goods on which the present insurance was made, contain the usual warranty against illicit trade, and are also warranted American property. If, then, from any circumstances of trade, or breach of neutral conduct, the capture was j usti* fiable, the underwriter must necessarily be discharged. It is important to observe that the abandonment was on the capture and not on the condemnation for the abandonment was on the 1st of October, 1799, and the condemnation not till the 17th of the same month. Whatever, then, was the state of the assured’s right at that period, must govern the decision of this day. The question, then, will be whether, from the circumstances of the case, there was probable cause of capture; for that is the point, however the condemnation may be, though from the words of the sentence “ good and lawful prize,” it is manifest the sentence proceeded on the ground that Thorres was interested with Blagge. On warranties of property the rule of law is, that the warranty is not only affirmative that the property shall be such as it is said to be, and have all documents and papers necessary to protect it by evincing its neutrality, but it is also negative that there shall be no papers tending to a contrary conclusion. 1 Marsh, on Ins. 817 — 319; Rich v. Parker, 7 D. & E. 705. So that though, a vessel may be furnished with every document to establish her neutral character, yet if others tending to a contrary conclusion be found, the warranty of neutrality is not complied with. It is necessary, therefore that a neutral ^should, [*553] during the voyage, act with the most perfect good faith towards belligerants; to do this, he should show the whole of his papers, which ought to be strictly genuine; none false or fictitious, and if any should be so, they ought to be candidly produced, and the reasons faithfully related. If the invoice of the cargo be fictitious, if there be any concealment of papers, allowing even that the circumstances should be afterwards explained, they justify carrying in, and, at least, subject to further proof. It is immaterial to the underwriter whether the explanation given be received as an excuse to avoid condemnation or not; as between him and the underwriter it is a forfeiture of neutrality, and the insurer is exonerated by the mala fides of the insured, though between him and the captor it may be only a matter of further proof. The consequences, however, as they arise from the conduct of the assured, are wholly at his risk. Having made these preliminary observations, it will be easy to show the negative of the rule that has been laid down was broken, and accomplished to evince that the affirmative had not been complied with. First, then, as to the negative, that there were papers leading to a suspicion of the want of neutrality. This is evident from the affidavit of Lovett himself; he swears that he made out a fictitious invoice and account of sales. These are his words: “Well knowing the depredations heretofore made by British cruisers upon American property, where the same appeared valuable, and particularly so If in specie or bullion, this deponent was induced, from what appeared to him prudential considerations, to make a fictitious invoice of the cargo of the said ship Flora out from Hew York, and an account of sales the same in Carthagena, also an invoice and bill of lading of her cargo from Garthagena to Hew York, whereby it would appear that the same was only cotton and fustic, in order, that if she was boarded by a British cruiser, he might be permitted to proceed on his voyage more readily than if his cargo was fully exposed to view.” It was not till after repeated denials of any other cargo, not till affirmations over and over, that there was no other cargo than the cotton and fustic on board, that the real invoice, and the several clearances were delivered up; and even then not [*554] «till the bullion and specie were discovered. These two articles were totally omitted in the invoice exhibited to the captors at the time of boarding the Flora. This alone was enough to authorize the detention of the vessel, nor is any attempt made at an explanation till the vessel is under libel in the court of admiralty. With what degree of credit that explanation could be received is worthy of observation. There is a bill of lading in which Lovett acknowledges the cargo to be shipped by Thorres on account and risk of Don Emanuel Grarcia del Bio, of Cadiz; and though it may be said that a clearance to a Spanish port was necessary, still the manner in which the letter of advice mentioning the shipment is worded, does not tend to remove the impression of its being Spanish property, and the place of destination used merely as a blind. In that letter she is said to sail properly registered for Cadiz, “ or any other port which .might “ be to her advantage to avoid any risk arising from the enemy.” If then, any other port was open to her, it is to be hoped no stress will be laid on the circumstance of her being in the track or route for New York. Spanish property may as well be sent to New York as to Cadiz. Allowing, however, this to be no more than a conjecture which a court of admiralty might make, it is impossible to get over the custom-house bond given to land the cargo in Old Spain, and pay the duties. Is not this such a paper as the vessel ought not to have had ? And let it be remarked that no explanation of this and the other papers evincing Spanish property, was given to the commander of the British frigate at the time of the capture. All that have been enumerated were found concealed, denied and persisted in. After the delivery of the fictitious papers, others were asked for and denied; a search took place, and they were, found. Have you any other cargo than cotton and fustic was demanded ? None was the answer. In a moment after the bullion and doubloons were discovered. Was not this having and doing every thing a neuter ought not to have had and done ? Under all the circumstances of the case, can any one say the condemnation was not well warranted ? For who would believe the explanations of the man [*555] whose whole tenor of conduct had shown *him unworthy of credit? The court of admiralty would naturally consider whether the explanations were consistent with the circumstances, and the former declarations of the parties. Allowing it problematic whether Thorres was the whole and sole owner, no court nor jury on earth but what would be justified in saying Thorres was interested with Blagge. But when the papers are examined, (and this court is not confined to the sentence,) it will be seen that Thorres was the actual proprietor. In a letter, written by Drake, the supercargo of the outward voyage, the confidential friend of the plaintiff, and dated-a few days after the arrival of the vessel, he says, “ The day after we entered the vessel we began to unload her, and deliver the goods to the owner, who, at the end of eight days, disposed of the whole.” Who could this owner be but Thorres, to whom the goods were addressed. We are aware of the explanation given by Lovett and Drake of the arrangement made at Oarthagena, that the property should be shipped in the name of Thorres. This, for eluding the revenue laws, might be necessary, but why continue the deception to Blagge himself? Is it not rather to be supposed that the truth came out ? Every one must think so,' and no doubt can be entertained of this letter, which certainly was not a document to prove neutral property, having influenced in its condemnation. That this was a just and proper conclusion, is manifest from the letter of Thorres to Don Emanuel Garcia del Bio. The consignment of the‘vessel from Blagge on- Bio’s account is fully set forth, and the account of return cargo, agreeing with the actual quantity of cotton and fustic, is mentioned. This letter is instantly followed by one from some Spaniards of the names of Matteo Arrage and Juan de Francisco Martin, to a Don Charles Frazer, of Hew York, whom we have never yet discovered, and to this succeed several letters pointing out the whole system of covering, by transmitting forms of invoices, &c. &c. to cloak the property. It is remarkable that this letter is dated the 5lh of June, 1797, and speaks of the order of the November afterwards. This, too, was one of the secreted- papers, and evidently is meant for purposes which do not meet the eye. At all events, it is one of those negative *papers [*556] which a neuter ought not to have. If the court will for one instant advert to thesecurityship of Thorres, and consider the amount to which it extends, they will naturally say it is impossible that it should be entered into by any person not absolutely a partner in the concern. It was to be can-celled in a manner that proves Spanish interest. Either by a certificate that the articles was landed in Spain, or by proof of a capture and condemnation in an English court. How could such papers be procured ? The very idea of their being to be brought forward, if the facts of capture and condemnation did not exist, leaves a most unfavorable impression on the means that must have been adopted. But it is not from inferences and reasonings that we are obliged to prove this was not American property. There is a written document, preserved on the declaration of Lovett himself, that the property is Spanish. In the clearance for Cadiz it is expressly so stated; and that is an official paper deserving full faith and credit. If the invoice be attended to, it is equally a suspicious paper. The amount of the sales of the cargo out are stated to be 55,000 dollars; the cotton and'fustic, it is true, balance this; but from whence have the 80,000 dollars in ingots and specie arisen ? Blagge had no funds in Carthagena; and his outward cargo is by the invoice stated to be only 55,000. These circumstances show such a mixture of interests between Blagge and Thorres, that the court of admiralty, unable to discriminate the portions, justly condemned the whole partnership concern. That this was the principle on which the admiralty proceeded is manifest, for they 'condemned what was claimed for Blagge, but acquitted Lovett’s and Drake’s proportion. The invoice in cyphers, however the character might have been explained, was unnecessary and dangerous paper. It is said, to be sure, to have been made for the amusement of the supercargo; but it served to throw a further air of mystery over a transaction already sufficiently mysterious. It is curious to observe the reason assigned for the taking out a clearance for Spain: That it was impossible to obtain one for any other place; and yet there is on board the Flora another clearance directly for Hew York, and both obtained [*557] from the same office. It is true *Lovett’s deposition says, he does not know whether they were signed by the same officers. But that is immaterial; they establish the possibility of having a clearance for Hew York, and from the custom-house too. This, then, contradicts the pretence of necessity. From the case it appears, that on the trial “ it was admitted, that all trade between the American and Spanish colonies is generally prohibited, and that it is notorious that it is so; but that sometimes foreigners do obtain special license to trade with the Spanish colonies.” As, then, this trade without a license is prohibited, and the clause agaipst illicit trade is preserved in the warranty, “ seizure or detention in port only excepted,” it is plain the risk of illicit trado anywhere else was expressly at the hazard of the assured. If this be so, certainly the consequences of such trade was equally a peril he undertook himself to bear. It can never be contended that though the principal is not at the hazard of the underwriter, yet that he is chargeable for the incident or result. This doctrine would be against- the words of the policy, and against reason itself. It cannot be presumed, that under a warranty of American property, which imolies that the property shall be accompanied with all documents necessary to prove it American, the underwriter’s contemplated that it should have every paper to give it the appearance of Spanish. A risk not necessarily to be en countered, is never to be imagined as included. The risk in port taken by the insurers would' have covered the consequences of smuggling the money: but as to any other risk from illicit trade it was expressly declined. Ho usage can, in the present case, be set up. It was the very first voyage. Therefore, none of the arguments to be derived from the Ostend case, Planche v. Fletcher, Doug. 238, can here apply. Allowing that the papers made use of were necessary for the voyage, yet, as it was a new trade, (see Kennoway v. Noble, Doug. 510, contra,) the warranty being against illicit commerce, it was incumbent on the plaintiff to acquaint the underwriters of the circumstance, because it undoubtedly increased the risk. On the principle of concealment, then, there cannot be a stronger case. In the case of Seton, Maitland & Co. there was not only a disclosure of the articles being contraband, but the very manner in which they would *be shipped was [*558] specified. But here nothing of this sort takes place, and the goods are at the usual premium for American property sent forward with all the risk attending Spanish. Independent of this, at the time of the capture, the assured being guilty of ill faith towards the belligerant, affords a justifiable cause of seizure and detention by the breach of neutrality committed, and thus exonerates the underwriter. It is no answer that the double papers and <oncealment of them was with a view to prevent being caried in: the fact is, that the reverse was induced, and though %lse papers, or even secreting them, may not lead to condemnation, yet, when these circumstances are mixed with alsehood, they warrant confiscation, and in the present case falsehood upon falsehood appears; denial after denial of papers and cargo, all of which on investigation arc found to be totally destitute of truth. It is evident, then the negative part of the warranty is broken throughout. Let us, then, advert to the affirmative — that there shall be every document to prove the neutrality. From Lovett’s own answer to the standing interrogatories it appears the vessel had no sea brief. The effect of this paper is that oí a passport: and it is indispensable for a vessel to be furnished with it. Price v. Bell, 1 East, 663; Rich v. Parker, 7 D. & E. 705. That she had it not is evident from the admiralty proceedings, and the list of papers exhibited there. It may perhaps be contended, that as the treaty with France was abrogated, the doctrine in Price v. Bell, which was the case of an American vessel captured by a French privateer, and condemned for want of a passport, does not apply. It is not, however, only by the treaty wjth France that this document is required ; by those with Spain, Holland and Algiers,(a) it is equally necessary. The importance of the paper cannot be better evinced than by referring the court to the argument of Lord Kenyon, in Rich v. Parker, before cited. It is evident, therefore, either that the assured has not acted as he ought to have done; in consequence of which the vessel was carried in and condemned, and, therefore, the underwriter discharged, or that she was not properly documented, being destitute of a sea brief, or passport, a paper essential to the security of vessel and cargo. Under either of these posi[*559] tians *the inference must be the same, and a new trial, it is hoped, will be awarded.
    The court in its decision may look beyond the sentence, and into the other general proceedings. Bernardi v. Motteux, Doug. 575, the process verbal was received. . So in Colvert v. Bovil, 7 D. & E. the court adopted the same principle, and adverted to things clehorsi

       the sentence. Whenever the master has been guilty of mala jides, even further proof is not allowed, nay, condemnation inevitably ensues. The case of the Welvaart, 1 Rob. Adm. Rep. 154, and that of the Vrouw,

       in the same book, 194, fully establish this.

      Harison, contra.
    This is a voyage by an American merchant to Carthagena. It is unnecessary, therefore, to refer to the evidence before the court, to show that the nature of this trade, and the necessity of a Spanish name were well known, and notorious to all the world. No one is or was' ignorant that foreigners had been prohibited from commerce with the Spanish colonies, and that even their own subjects could not traffic from neutral countries, till after the order of the 17th November, 1797. Up to that period, the whole trade of the American dominions of Spain had been confined to Spaniards trading from Spain. In 1797, the order above mentioned made the relaxation alluded to; and, for -the sake of supplying their foreign territories, the Spaniards allowed importations from foreign countries. This will furnish a clew to a great part of this business, and show the construction we shall contend for to be right. As to the possibility of licenses, whether they exist or not is immaterial. The want of one was never made a part oí the defence. It is enough to advert to the nature of the trade, and if this was notorious, and could be carried on but'in the name of a Spaniard, then that it should be used, must be considered as intended by the assured, and taken as part of the contract by the assurer. That a license was never in contemplation is manifest from the exception at the foot of the policy: “ risk of seizure and detention in port excepted.” What, then, is the language of the policy ? We will not take this risk in port, because *we know the trade. Under a license it cannot be, for the license *would protect you there: under the royal [*560] order it is .equally impossible, because then a Spaniard could have no danger against which to wish an indemnity: but against a seizure in port an American would have to guard, because there alone could there be danger to him, and this we undertake. Therefore, granted that the usual clause of warranty against illicit trade is retained in the policy, this only stands in opposition to the clause at the bottom, and shows the nature of the trade known to be an attempt to evade the royal order of 1797. If this construction be right, then is the policy consistent throughout. No risk, say the underwriters, do we undertake from contraband trade, except when in port. All others are at your hazard, but as to the necessary means to cover the trade, that you, the assured, must use for our security, and as freely as you think fit. Therefore, want of good faith is not to be imputed to the plaintiff; all that he did being in the course of trade, equally within the view of himself and the underwriter. If, then, the vessel (departed from hence to avail itself of the order of 1797, the necessity of the property assuming a Spanish appearance must appear to the court, and this alone will unravel the whole proceedings. Lovett’s depositions in the admiralty show that it was necessary to clear out for Spain, nor does the clearance for New York convict him of a falsehood in this respect. It is requisite, for the carrying on the system of trade the plaintiff embarked in, that the vessel should be registered as having cleared' out for Cadiz, to enable him to protect his cargo against their own guarda costas, and still they may give him another clearance for New York, which never was entered in the registry of the custom house. This violation of principle is not according to moral duty we confess, but the transaction was with a Spanish custom-house, and it is evident that the two clearances were not by the same officer; so that the explanation given stands perfectly with the nature of the trade. That the money has not been included in the clearances is elucidated by the same means; by a reference to the commerce insured. The case states it; the exportation of coin and bullion are prohibited; to take them out of the country recourse is had to smuggling, in which, if dis-[*56I] covered, imprisonment *for life is the mild penalty of the law. How, then, could it be entered and cleared? The concealment, then, here so much cried out upon, arose from the nature of the trade, and was a measure to which the assured was necessarily reduced. This •furnishes in part, an answer to the outcry of “ American property," “ warranted American property,” “ to be furnished with all documents to prove it American property,” “ and none to show it Spanish,” in short, to all that has been urged on the negative and affirmative doctrine of warranties. This appears more fully on viewing the memorandum at the foot of the instrument. Proof of property is by that to be made in New York. What can this mean but that the assured will not be concluded by any foreign determinations; that he reserves to a trial of his own countrymen the question of American property or not, and will not submit it to extra forensic tribunals ? Why is this to be so ? Because the transactions were to bear the semblance of Spanish interest, and the contrary could not in any place be so well shown as here, where all the property and business could be established ; where it was necessary only to show it actually American, however it might appear. In 2 "Val. 128, this position is acknowledged. There the trade was notoriously illicit, being of silk from Barcelona to France, yet, under similar circumstances as the present case, the underwriter was, on account of the notoriety, held liable. The concealment, therefore, here, is no more than a means of carrying on the trade. If this be correct, all the observations on concealment and documents are overthrown, for they are in the course of trade, and done for the benefit of the underwriter. It is true the court leaned to that idea in Goix v. Low, but the court of errors reversed that determination; and here it is to be observed, the nature of the trade demanded the papers made use of. They were obtained in the most perfect bonafides and can it be said that the contract is thereby destroyed ? Against the supposition of a joint interest between Blagge and Thorres, the depositions in the admiralty are full evidence. The same was testified here; so that the proof of property, under the policy, is complete. All this, however, is to be done away by ^circumstances [*562] which the nature of the transactions fully explain. The clearance for Cadiz, and all the other documents giving a Spanish aspect to the business, are necessary proceedings to enable the plaintiff to avail himself of the royal order of 1797. The letters on the subject detail the methods to be adopted for that purpose, and though it is mentioned by Drake that the goods had been delivered to their “ owner,” it must be recollected it was possible that letter(«) might fall into Spanish hands on the coast. But whoever it might deceive, it could not deceive him to whom it was addressed. One, it is hoped, insuperable objection to all the arguments used, to evince Spanish property in the cargo is, that they are Brawn merely from circumstances, whereas the evidence of neutral property in the plaintiff is dei’ived from the most positive affidavits. The animadversion on the date of the letter is hardly worth answering. It could not, by design, have been dated in June, 1797, and speak of the order of November following; but if we make a rational supposition that, in copying the date, 1797 was, by mistake, inserted instead of 1799, the whole mystery vanishes. This seems very probable, for the letter came by a vessel which sailed in 1799. Neither is there any contradiction in Lovett's testimony as to concealment of papers; because, when examined under the standing interrogatories, they were all actually delivered up. Every measure adopted by the master of the vessel was clearly prudential; and therefore, if bona fide, must be protected. No argument can be drawn from the customhouse bond being entered into only for merely a fourth of the net-profits; for yfe have the same transaction here every day for only a commission. That sea brief and passport are synonymous terms may be doubted. 1 Marsh. 317. But whether so or not is immaterial, for the vessel carried fully as authentic a document; she was commissioned as a letter of marque, and nothing stronger could be produced to substantiate her national character. That this should have been communicated to the underwriter cannot be urged, because when a vessel is not designed to cruise, the being commissioned is settled to be an immaterial fact. The objection, however, not being made at the trial, cannot ■ be heard. All indeed that has been said, ^relating to ships’ papers, is totally ir- [*563] relevant, as the warranty is only to the cargo and not to the ship. The whole case presents a statement of American property engaged in a trade notoriously to be carried on under Spanish appearances; and therefore, if the court see the warranty of property has been complied with from the general tenor of facts submitted, the verdict ought to stand.
    Hamilton, in reply.
    To its being so our objections are twofold: one, from the conduct of the master as the agent of the plaintiff; the other, on account of the defect in complying with the warranty. His conduct is connected -with the question of warranty, because it is to be such as will not compromit the property. Therefore, if the conduct of the assured has that effect, it is a breach of the neutrality warranted. In Jackson v.-in this court, it was held that though the property warranted American, ivas actually so at the time of effecting the policy, yet as the assured bad, by a transfer, altered the nature of the subject matter the warranty was not complied with. In the present case the misconduct was glaring. First, as to the false papers; secondly, in the behavior manifested at the time of capture. On the full .effect of the former, in cases like the present, there is no decision. But if it were held fatal, it would not perhaps, be too strong a conclusion. An underwriter ought to know how to calculate his risk: this is never to be done if the assured has it in his power to give any aspect he may think fit to the property insured. In another point of view it ought to be fatal: no court ought to consider that men will act on a principle of de ceiving any power whatsoever. Even policy will suggest this rule, for who can blame belligerants for intercepting our trade when they see it -has been directed in a continued course of deceptive commerce? On this, again, the books afford no authority; the only case is that of the Ostend

       vessel, and there the court went on the notoriety of the trade; nothing but this will afford, a justificatory reason. The conduct adopted by the plaintiff’s agent gave to an American adventure all the danger of a belligerant risk, and this at only a premium for a neutral hazard ; this circumstance affords one of the indicia by which we [*564] are *to judge no species of illicit trade could be in the contemplation of the underwriters. The clause at the bottom of the policy does not contradict this position ; it is coupled with the proof of American property; there is no stop to disconnect them and, therefore, the court' must take them together, and not with a reference to the clause against illicit trade. In this sense, therefore, ' the exception is nothing more than that, in case of seizure or detention in ports, proof of American property shall not be demanded in Hew York. It is not as contended for, a disavowal of being bound by the opinion of other tribunals; if they are not conclusive they are to be looked into, and even all other documents on which the sentence has been framed: will not, then, the court look into the general conduct of the plaintiff’s agent, as it appears by the proceedings, and see if it does not amount to that of a breach of neutral conduct, which amounts to a breach of warranty, and, therefore, the verdict necessarily to be set aside Í

         A. court of admiralty is not so rigorous. If the papers be necessary to the trade tho neuter Iona fide carries on, they will not affect her. See the cases of the Immanuel and Providentia, in 2 Rob. Ad. Rep.

         “As to the condition to return to some port of Spain, which, from Ilia paying Cadiz duties, it is said, might be imposed upon the master, I see nothing in that which will materially aflect him, after the vaiious cases from Surinam, in which, although bonds had been given to return to Holland, this court has restored, on the master’s making satisfactory proof that they did not intend to comply with the condition, and intended to submit to the penal forfeiture.” Per Sir W. Scott, in the Providentia, 2 Rob. Ad. Rep. 153, Eng. edition.

        а) The passport by the Algerine treaty is a very different paper from the eea brief. See the form of it, 1 Lex Mer. Amer. Ap. vi. No. x.

       This is a mistake in the learned counsel; the court there looked at the sentence alone, which stated unwarrantable reasons for conden. nation.

       The Vrouw Hermina is the case alluded to.

       The counsel on both sides argued this cause as if the letter was from Drake to Blagge, whereas it was to one Don Manuel Thorres.

        а) Moss v. Byrom, is supposed to be the case alluded to. 6 D. & E. 373.

       A captain of a vessel is not the agent of the shipper of goods, not even when the ship is owned by the shipper, and still less when, as in the present case, there was a supercargo.

       Even if it be after capture. Goold v. Un. Ins. Com., 2 Caines’ Rep. 73.

        Planche v. Fletcter, Doug. 251, where the court went on exactly the reverse of the position of the counsel, because the usage was merely in contravention of political and positive, not natural and moral duties.

   Lewis, Ch. J.

delivered the opinion of the court. The effect and fulfilment of the warranty of neutrality, are the points on which the controversy between these parties principally turns. A distinction is set up between this and a general warranty of neutrality on account of the qualification, as it is termed, contained in the stipulation that proof if required, is to be made in New York. The design of introducing this clause in policies is notorious. It was to steer clear of the doctrine of the conclusiveness of foreign sentences, and cannot affect the essence of the warranty. The obligation of that must remain the same wherever the proof of performance may be exhibited. A warranty of neutrality, in a policy of insurance, imports, not merely that the property is neutral, but that it shall be accompanied on the voyage with all the accustomed documents to insure it respect as such, within the laws of nations. And, although the question has never, to my knowledge, been decided, the same principle will.require that it be unaccompanied with any document that shall compromit its •aeutral character. Where the assured, by means of false papers, or by any other improper conduct, invests the property with the double character of neutral [*565] and belligerant, *be his motives what they may, he subjects it to a risk against which the underwriter did not insure, and, of course, releases him from all responsibility. The assured stipulates, by his warranty, that the insurer shall be liable for a neutral risk alone. The instant, then, that he attempts to put him to the hazard of a belligerant risk, he forfeits, his claim to an indemnity. -Hor does the dictum cited from 2 Valin, if admitted in its broadest latitude, in the least shake this principle. For, although the underwriter may be bound to know the nature of a trade notoriously illicit, it does not follow that he is to be liable to the consequences of every ingenious device that may be resorted to as a cover for the property. But, were it otherwise, the doctrine of Valin would not apply to the case before us. The trade in which the Flora was engaged, was not notoriously illicit, for it is stated to have been sometimes permitted, at others prohibited. The underwriters appear to have intended to guard themselves against the consequences of an illicit trade, by excepting from the risk seizure or detention in port.

There is another circumstance in the present case which militates strongly against the plaintiff’s right to recover. It is a maxim that neutral commerce is to be conducted with good faith towards belligerants. Their rights are to be respected as well as those of neutral nations. It is not sufficient that a part only, but the whole property, covered by the policy, must be neutral. And if a cover is attempted for enemy's property, by an intermixture with neu • tral, it is held to subject the whole to confiscation. In the present instance it is stated that the homeward cargo was purchased with the proceeds of the outward. How the latter sold for 55,500 dollars, and the former cost 89,000 dollars. It was incumbent, then, on the assured to show that the excess was also American property. This might have been shown had the fact been so. It does not appear, however, that this was attempted. And, although it was a question submitted to the jury, I think we are bound to say that, as to this, their verdict was against evidence.

The court is of opinion that the verdict ought to be. set aside, and a new trial awarded.

.New trial.

       To comply with a warranty of “neutral property," it must be accompanied with all papers and documents required by the treaties of the country to which it belongs necessary for its protection on the voyage insured. Baring v. Royal Ex. Ass. Co., 5 East, 99. If, therefore, a passport with the habitation of the captain be one, a passport with his name describing him as “master of the V. of A.” is a breach of the warranty. Baring v. Christie, 5 East, 398. But sailing with a sea letter, though without a register, if the vessel be otherwise sufficiently documented, is a compliance with the engagement. Barber V. Phoenix Ins. Co., 8 Johns. Rep. 307. No paper which will increase the risk, or falsify the warranty, must be on board. A letter, therefore, in sympathetic ink, stating the property to be in others than the insured is a violation of it. Canere v. Union Ins. Co., Cond. Marsh. 406, a (note.) So is any act or omission of the assured, or his agent, by claiming falsely, or omitting to claim. Calbraith v. Gracie, Cond. Marsh. 406, b. (note.) But if there be’nta warranty of the national character of a ship, she need, not be documented as'of the country to whicli she belongs. Dawson v. Atty, 7 East, 367. For the law as to documenting applies only to express warranties, and does not extend to those by implication. Etting v. Scott & Seaman, 2 Johns. Rep. 157.