Greene's Case.

The principal point in the cause turned upon the state of Mr. Bradford's mind, at the time of cancelling the second will and declaring his intention to die intestate; and the jury being of opinion, from the evidence, that he was then in possession of a competent understanding, found a

Verdict for the defendant.

Ingersoll and R. Stockton (of New Jersey), for the plaintiff. Lewis, M. Levy, and Todd, for the defendant.

GREENE'S CASE.'

Witness.

In proceedings in insolvency, a creditor is a competent witness, to prove fraud in the debtor.

GEORGE GREENE having petitioned for a discharge under the laws for the relief of insolvent debtors, one of his creditors was offered as a witness, to prove that several judgments had been confessed by the petitioner, without a valuable consideration, and with a view to defraud. It was objected, that a creditor was not a competent witness; as his testimony would go to invalidate the judgments, as well as to the imprisonment of the petitioner.

BY THE COURT.-This is a question of fraud; and we can perceive no just reason, why a creditor should not be examined to ascertain whether, on that ground, the petitioner ought to be remanded. The evidence [*269 can never affect the judgments; nor be admitted, on any other occasion, to maintain the personal interest of the witness. Let him be

sworn.

After a long opposition, however, the petitioner was discharged. McKean, Dallas and S. Levy, for the petitioner. M. Levy, Hallowell and Thomas, for the creditors.

consideration; that opinion was not delivered by the court, but by the Chief Justice; nor was there any argument upon it; it was not before the court for decision" (p. 584). And in Wilson v. Wilson, 3 Binn. 561, Chief Justice TILGHMAN said: "This report is certainly inaccurate, in more respects than one. The dictum was not by the court, but by the Chief Justice only; nor did the other judges express any opinion, or consider the point alluded to, as having been decided. This has been several times declared by the late Judge SMITH, both in private, and in his seat on the bench; and I know that his notes make no mention of any such decision. The opinion of Chief Justice MOKEAN I shall always consider as very respect

able, but not to be compared to a decision of the court. There must be a mistake, however, as to his having said, that the next of kin could only take, in case of an intestacy; for he well knew, that when a legacy is given to the executor, he is considered as a trustee for the benefit of the next of kin." But see the remarks of Judge YEATES, in the same case, p. 566, and the case of Davis v. Davis, cited by him, as having been decided by WILSON, P. J., in Dela. ware county, in April 1806.

1s. c. 1 Yeates 166, and see Ingraham on Insolvency 106. The contrary was held by the supreme court of Delaware, in Edwards v. Townsend, 3 Houston 100, where the editor was of counsel for the opposing creditors.

235

EWING V. MCNAIR.

Practice.-Execution.

When judgment is had in term, an execution may be made returnable to the last day of the same term, for the purpose of founding a testatum.

JUDGMENT was entered in this cause, on the first day of September term, 1796; and the plaintiff issued a testatum fi. fa. to Allegheny county, founded on a fi. fa. to the sheriff of Philadelphia county, which was made returnable on the last day of September term 1796, but had never been actually taken out, though it was minuted on the roll. The testatum fi. fa. being levied on lands, E. Tilghman now moved to set the writ aside, as being founded on a fi. fa. not legally or properly returnable. But

BY THE COURT.-The present case appears manifestly to be included in the words of the act of assembly, which declares, "that the last day, as well as the first day, of every term, shall be a common day of return in this court, at either of which periods any writs, original, mesne or judicial process, &c., may be made returnable; and that the writs and process returnable on the last day of the term, shall be as valid and effectual in all cases, and to all intents and purposes, as if the same had been made returnable on the first day of the term." 3 Dall. Laws, 770.

We do not mean, however, to give any opinion, at this time, as to the effect of such a proceeding, in charging bail, or levying upon lands within the county in which the judgment was rendered.'

Rule refused.

*270]

MARCH TERM, 1797.

*VASSE V. BALL.'

Decree of prize court.-Forfeiture.

In an action upon a policy of insurance, the decree of a foreign court of prize is not conclusive against the assured.

A small matter of dutiable or prohibited goods, is not sufficient to condemn a vessel.

THIS was an action on two policies of insurance for $28,000, upon the brig Salmon, and her cargo (both the property of the plaintiff, an American citizen), from Port au Paix to Philadelphia, in which these clauses were inserted: "It is declared, that this assurance is made only against capture of the British, or any of the subjects of Great Britain." "The brig is warranted to be an American bottom; and the cargo of the said brig to be American property."

On the trial, the following appeared to be the material facts: The brig, having carried a cargo of flour from Philadelphia to Port au Paix, under a contract with Mr. Fauchet, the French minister, was captured and taken into Bermuda, for adjudication, by a British privateer, on her return to Philadelphia. The master of the brig wrote to the plaintiff, his owner, stating the capture, and declaring the strongest apprehension, that a condemnation

1See Baker v. Smith, 4 Yeates 185.

8. c. 2 Yeates 178.

Vassc v. Ball.

would ensue, as the captors had got possession of the receipt for the flour delivered upon the contract with Mr. Fauchet, and he had been compelled at Port au Paix, to take on board a French officer and a few soldiers (who were all invalids), with their baggage and some articles of household furniture, in order to bring them for their health to America. The plaintiff communicated the capture to the defendant, and in explicit terms, represented the case to be a desperate one; but the defendant, with confidence, declared, that, as a new governor had been recently sent out to Bermuda, there would be a change in the administration of justice; so that if the property was bond fide American, it would certainly be acquitted; and in that confidence, he agreed to insure the vessel and cargo for a premium of ten per cent. At the time of making this agreement, the master's letter was not shown to the defendant; but the evidence raised a strong presumption that it was produced and read to him, at a subsequent meeting, before the policies were underwritten.

The brig and cargo being libelled in the vice-admiralty court of Bermuda the libel set forth the following allegations as causes of condemnation : 1st. That the vessel and cargo were French property. 2d. That the vessel was an American transport, in the French service, employed to carry [*271 flour and soldiers to and from French ports. 3d. That the vessel had been employed in carrying dispatches for the French government. 4th. That the vessel had been employed in trading with the enemies of Great Britain, supplying them with the means of sustenance and of war. 5th. That the port from which the vessel came was in a state of blockade. The judge of the vice-admiralty pronounced a general decree of condemnation upon both vessel and cargo, without specifying any particular cause of forfeiture.

Under these circumstances, Ingersoll and Du Ponceau, for the plaintiff, contended, that they were entitled to show, that the brig and cargo were bond fide American property; that, if so, the warranty had been complied with; and that no other ground alleged in the libel was a just cause of capture and condemnation to discharge the underwriter. It is true, that the ancient cases say, generally, that foreign judgments are conclusive, without distinguishing between the judgments of courts of admiralty, and other courts; but modern adjudications have more accurately settled, that, a foreign judgment shall be deemed prima facie evidence, but, like all other evidence, it is liable to examination. Doug. 6; 4 T. R. 493; Bull. N. P. 245; 2 Show. 232 (Leach's Edit. in not.) (a). The sentence may justly be conclusive between those who are parties to it, and must, ex necessitate, be conclusive upon the subject to which it immediately applies: but it ought not to be binding on third persons, with collateral interests; nor upon objects which it never contemplated. There has been a great fluctuation in the English decisions upon points of commercial law. The insurance of enemy's property has, at one time, been held lawful; but Lord Mansfield's decisions on that point, have been recently overruled. Park 239 (last Edit.). And it is well known, that the English courts of vice-admiralty do not decide accord

(a) MCKEAN, Chief Justice. The idea that a sentence of a court of admiralty is conclusive, arises from this consideration, that the court always proceeds in rem. The decree naturally and necessarily binds the subject of the proceeding, a ship or cargo; and any person purchasing under the decree will, of course, be secure.

Vasse v. Ball.

ing to the law of nations, but according to the instructions of the crown. But there is not, in fact, any judicial determination of the English courts, antecedent to the American revolution, which declares, that the sentence of a court of admiralty cannot be examined and controverted between persons who were not parties to it. The case of Bernardi v. Motteux, Doug. 554, occurred since the revolution; it has, therefore, no obligatory influence; and it carries the doctrine, respecting the conclusive *character of a *272] sentence in a foreign court of admiralty, to an extent so extravagant, that American tribunals should be well convinced of the reason and justice of the position on which it turns, before they voluntarily acquiesce in the decision. Besides, this is not a question of English municipal law, in which the judgment of an English court must be respected, as evidence of the law : but it is a question arising on the law of nations; and if there is a diversity of opinion in the courts of different nations, every nation is at liberty to examine the principle. Thus, then, it has been determined in France, that the sentence of a court of admiralty is not conclusive in a controversy between the underwriters and the assured. Emerigon (a writer celebrated even in Westminster Hall) says: "Il est donc certain, que les assureurs répondent de la confiscation injuste prononcée par le tribunal du lieu ou le navire pris a été conduit. Les jugemens rendus par les tribunaux étrangers ne sont en France d'aucun poids contre les François, et qu'il faut que la cause y foit de nouveau decidée. D'où il fuit, que le jugement de confiscation prononcé par un tribunal ennemi, n'est ni une preuve que le veritable pour comte ait été caché, ni un titre que les assureurs puissent alléguer pour se dispenser de payer la perte. Telle est notre jurisprudence." 1 Emer. 457-8. (a) Great Britain, as an underwriting nation, has an obvious interest in maintaining a contrary doctrine; but, as the policy does not apply to the situation of America, the practice ought not to be adopted.

Even, however, if the sentence of a court of admiralty were to be considered as conclusive as the strongest of the English cases can justify, the present cause would not be affected; for, it can only be conclusive upon what it appears to have decided; and it is impossible, from the present decree, to ascertain the ground of condemnation. In that respect, this cause is analogous to the case of Bernardi v. Motteux, Doug. 555; the general warranty being there as forcible, as the additional clause in the policies now controverted. Under every warranty, then, the only question is, what the parties meant. Park, Ins. 410, 392-5, 492; Ib. 301 (last Edit.). Here, they plainly meant, that, if the property assured was American, the underwriters should be bound to pay. But, it is answered, the libel *alleged the *273] property to be French, the condemnation is general, and the decree is conclusive. It must be observed, however, that the libel alleges more; and that the allegations are in direct contradiction to each other; for, if the

(a) "It is certain, that the underwriters must be responsible, in the case of an unjust confiscation, pronounced by the tribunal of the place, to which the captured vessel has been conducted. Judgments rendered by foreign tribunals are of no weight in France, against Frenchmen; and the cause must there be decided de novo. Hence, it follows, that the sentence of confiscation pronounced by the tribunal of an enemy, is neither a proof that the real owner has been concealed; nor a title which the under writers can allege, to avoid paying the loss. Such is our law."

Vasse v. Ball.

vessel and cargo were French property, they could not, likewise be, as all the other allegations import, American property; and when the plaintiff can show, that it was impossible the decree should be on the ground of French property, it must be presumed to have proceeded on the other grounds stated in the libel. As to those other grounds, it is enough cursorily to observe, that the defendant has in vain endeavored to prove, that the vessel was employed in a trade with the French islands, not permitted before the war; that the transportation of a few, unarmed invalids, cannot be denominated contraband; nor will their personal baggage and furniture come within the description of the cargo; Park, Ins.; Bunb. 232; Str. 943; 1 Dall. 197 ;(a) and that the rest of the allegations are not causes of condemnation upon any principle of the law of nations.

:

The defence was supported by Lewis, E. Tilghman and Rawle, on three grounds 1st. That there was a concealment from the underwriter of the facts, known to the assured, that flour had been exported in the vessel for the French minister, and that there were French soldiers and their property on board, at the time of the capture. 2d. That the warranty had not been literally fulfilled, as a part of the property on board was French, and furniture must be considered as part of the cargo; and it is immaterial, whether the loss is owing to a breach of the warranty or not, if the warranty has not been strictly complied with, even in a trifling circumstance; à fortiori, in a circumstance of such importance. Park, Ins. 318; 1 T. R. 345; 3 Ibid. 360; Cowp. 607. 3d. That the sentence of the court of vice-admiralty is conclusive. Whatever was meant to be decided, shall be for ever at rest. Park, Ins. 354; Doug. 544. And in a great variety of cases, it is held, that when there is a warranty of neutral property, and the condemnation is general, the decree shall be conclusive; which is likewise the law, when the sentence is given on the very point of the warranty. 2 Str. 743; Skin. 59; 3 Show. 232; T. Raym. 473; Carth. 34; Salk. 32.

[*274

MCKEAN, Chief Justice.-The same difficulty, that occurred in the case of Bernardi v. Motteux, Doug. 555, certainly occurs in the present casehow is the ground of condemnation to be ascertained? The libel asserts in one place, that the property *is French; in another place, that it is American; and the several statements that the vessel was employed in assisting or supplying the French, also imply that it belonged to a neutral owner. The decree, however, is general: but can we impute to it, the absurdity of meaning to decide, that the vessel and cargo were, at the same time, neutral and enemy property?

SHIPPEN, Justice. If the libel had confined itself to allege, that the property was French, and the decree had been general; or, if the decree had specifically selected and stated that allegation, as the ground of condemnation, I should have been strongly inclined to think, that we were bound by the decision. But the object of the present inquiry is, to ascertain for what cause the vessel and cargo have been confiscated?

(a) SHIPPEN, Justice.-The strongest case on the question of a cargo, is that in Bunb. 232. I remember, that before the revolution, there was a seizure of a Palatine vessel with passengers, on account of the baggage; but I acquitted her, on the authority of that case.