GENERAL COURT.

Jeremiah T. Chase, Chief Judge,

John Done

Richard Sprigg Judges.

Dixon Slade et ux. v. Robert Morgan.

May 1803. Action of debt on a testamentary bond. General Performance, Replication, Rejoinder, No assets, and Payment,

&c.

It was contended, for the plaintiffs, that on the plea, the proof lay on the defendant, that he had legally discharged himself from the claim; and Swinb. 420. 14. Vin. 466. title " In-v ventory," were cited, that a legatee shall recover against an executor who has returned no inventory.

For the defendant, his counsel urged that the proof of assets lay on the plaintiff, whether he was a legatee or distributee, and that the defendant could not be put to prove a negative. The direction of the court was prayed, that before the plaintiff could recover in this action, he must prove assets in the defendant's hands, which direction the court refused to give.

The defendant then offered to prove that nothing came to his hands but evidences of debts, which were afterwards paid off to him in continental money, but

Per cur. This evidence is inadmissible.

Under the plea of payment, the defendant's account of payments made by him was admitted, and if proved, would have been received by order of the court.

Verdict for the plaintiff. Martin for the plantiffs, Hollingsworth and Johnson for the defendant.

Beal v. Beal et al. admrs. of a surety in a testamentary bond. May 1803. Debt on a testamentary bond. Performance and Limitations, Replications and Rejoinders, Payment, &c.

This action was brought to recover a distributive share after the payment of debts. No account was settled in the orphan's

court by the executrix. Other evidence was admitted by the court of payment of debts by her. The defendants offered a copy of a judgment against Sarah Beal, not against Sarah Beal executrix, and parol evidence that it was the debt of the testator. To this the plaintiff objected, inasmuch as there is not the evidence at that time necessary in the orphan's court.

Per cur. Parol evidence that the testator owed a sum of money which the executrix has since paid is admissible: the admission of the executrix on which judgment may have been entered in a court of law in her own name is not evidence against her.

Shaaff & Johnson for the plaintiff, Mason for the defendants.

Verdict for the defendants.

Juridical Opinions.

A.

B. effected insurance on brig

vessel, cargo and

freight, at and from Gaudaloupe to New-York, warranting the same to be American property.

The brig sailed from Gaudaloupe on the 22d January last, on the same day she carried away one of her topmasts and stays and bore to leeward of Montserat; was captured by a British privateer and carried into that island, when, after lying some time she parted her cables and drove to sea, was then carried into St. Kitts being still in possession of the privateers

men.

On the 18th March she was tried at Antigua and acquitted on payment of costs, port charges &c. to the amount of 500/. that currency, for which the captain was under the necessity of giving a bottomry on brig and cargo. The brig with her cargo consisting chiefly of molasses arrived in New-York on the 27th April, part of the cargo had become during the detention damaged.

On the 2d of April A. B. tendered an abandonment of the vessel, freight and cargo to the insurers.

On the arrival of the vessel at New-York, the assurers were informed of it and applied to for direction respecting the property; they declined giving any, but gave permission to the assured to dispose of vessel and cargo to the best advantage without prejudice to his claim under the abandonment. A sale of the cargo was accordingly made, but the vessel could not be sold, on account of the bottomry bond remaining in force, and she now lies at New-York subject thereto.

The underwriters refuse to accept the abandonment. Has A. B. a claim for a total loss under the abandonment, or only for an average or partial loss?

AS

NEUTRAL TRADE.

To

Gentlemen,

Philadelphia.

London, 26th November 1805.

S the present system of our government, relative to the capture and condemnation of neutrals having on board the produce of the enemy's colonies, is become a subject of the greatest importance to the commercial world in general, and to American citizens in particular, and presuming it may not be uninteresting to yourselves, we take the liberty to hand you on the other side, a copy of a case drawn for the purpose of procuring the best information as to the conduct Now to be adopted by neutrals engaged in such adventure, together with the opinion of one of the most eminent civilians in the admiralty courts. We are &c.

CASE. A. and B. merchants at New-York, subjects and citizens of the United States of America, and extensively connected with the continent of Europe, from the different quarters of which they learn that the produce of the enemy's colonies is selling at high prices, and on contrasting them with those of New-York, they find sufficient margin for successful adventure; in consequence of which, they determine on shipping a cargo of Havanna and Martinique sugars and coffee,

Carraccas cocoa, log and Nicaragua wood to the port of Leghorn; and in pursuance of this scheme, they attend the public sales and examine the private warehouses of individuals, where they succeed in purchasing so much as is deemed advisable of each of the above articles, partly at public, partly by private sale; bills of parcels for which are tendered by the sellers, who accompanying the purchasers to a magistrate, before whom the latter, as well as the former, make oath to the fact of such purchases, and the particulars as stated in the bills of parcels, which oath is countersigned by the English, French, Spanish and such other consuls whose signatures may be deemed needful. For the transport of this property, an American vessel is chartered, on board of which it is shipt; and the vessel proceeds on the intended voyage, furnished with the regular documents to establish the neutrality of her flag; the captain is also provided with the aforesaid authenticated bills of parcels, together with bills of lading in conformity, and the certificate of the citizenship of A. and B. also of their ownership of said cargo.

Quere. Can such vessel, on such voyage to Leghorn, be legally detained by British cruisers? and if detained, is either vessel or cargo, or any part thereof, subject to condemnation? likewise what would be the situation of this vessel and cargo, if bound direct to an enemy's port, say Amsterdam, Bordeaux or Cadiz?

OPINION.

If the transaction be truly as here stated, so that it be a speculation essentially originating in America, for a voyage actually commencing there, neither vessel nor cargo nor any part of such cargo would be subject to condemnation, whether destined to Leghorn, Amsterdam, Bordeaux, Cadiz, or any other port, neutral or hostile, in Europe; a detention however, may be legal, where the result may not be condemnation; what would justify detention can hardly be defined in answering a supposed case, because it must depend on a view of all the evidence taken together, both oral and documentary.

(Signed)

London, November 19, 1805.

F. LAURENCE.

THE

Vice Admiralty Court of Antigua.

HE schooner Washington, belonging to Mr. Soulic of New Orleans, taken on her voyage from Bordeaux to Orleans, and sent into Antigua.

Decree of Judge Byram.

Mr. Soulic's right and property in the vessel and cargo as an American citizen, resting altogether upon his residence at New Orleans from the date of the session of Louisiana by the government of France to the United States of America, it remains to be determined whether a native subject of France, who, when Louisiana belonged to Spain, was a subject of that kingdom, and when it was ceded to France became a French subject, and in both characters trading to and from the countries of the enemy of Great Britain, shall be, at once by the sale of Louisiana to America, considered as an American citizen and entitled to the rights of neutrality. That is too much for this court to say, and is a question only to be decided by a superior tribunal. Considering therefore the vessel and cargo as the property of French subjects, &c. I do order, adjudge and decree, and it is hereby ordered, adjudged and decreed, as the definitive sentence of this honourable court, that the said schooner Washington and her cargo or lading (except such part as belongs to the master and which is hereby ordered

to be restored) be and the same are hereby condemned as good and lawful prize to his majesty's ships Hippomenes, whereof Edward Wolcombe, esq. is commander, and L'Hereux, whereof George Younghusband, esq. is commander, and to be delivered to their agent or agents, accordingly be divided, &c.

Antigua, December 5th 1805.