Little v. Barreme. 2 C.

It was so obvious, that if only vessels sailing to a French port could be seized on the high seas, that the law would be very often evaded, that this act of congress appears to have received a different construction from the executive of the United States; a construction much better calculated to give it effect.

A copy of this act was transmitted by the secretary of the navy to the captains of the armed vessels, who were ordered to consider the 5th section as a part of their instructions. The same letter contained the following clause: "A proper discharge of the important duties enjoined on you, arising out of this act, will require the exercise of a sound and an impartial judgment. You are not only to do all that in you lies to prevent all intercourse, whether direct or circuitous, between the ports of the United States and those of France or her dependencies, where the vessels are apparently as well as really American, and protected by American papers only, but you are to be vigilant that vessels or cargoes really American, but covered by Danish or other foreign papers, and bound to or from French ports, do not escape you."

These orders, given by the executive under the construction of the act of congress made by the department to which its execution was assigned, enjoin the seizure of American vessels sailing from a French port. Is the officer who obeys them liable for damages sustained by this misconstruction of the act, or will his orders excuse him? If his instructions afford him no protection, then the law must take its course, and he must pay such damages as are legally awarded against him; if they excuse an act not otherwise excusable, it would then be necessary to inquire whether this is a case in which the probable cause which existed to induce a suspicion that [* 179] the vessel was American, would excuse the captor from damages when the vessel appeared in fact to be neutral.

I confess the first bias of my mind was very strong in favor of the opinion that though the instructions of the executive could not give a right, they might yet excuse from damages. I was much inclined to think that a distinction ought to be taken between acts of civil and those of military officers; and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which in general requires that he should obey them. I was strongly inclined to think that where, in

Dunlop v. Ball. 2 C.

consequence of orders from the legitimate authority, a vessel is seized with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is, that the instructions cannot change the nature of the transaction, or legalize an act which, without those instructions, would have been a plain trespass.

It becomes, therefore, unnecessary to inquire whether the probable cause afforded by the conduct of The Flying Fish to suspect her of being an American would excuse Captain Little from damages for having seized and sent her into port, since, had she been an American, the seizure would have been unlawful.

Captain Little, then, must be answerable in damages to the owner of this neutral vessel, and as the account taken by order of the cir cuit court is not objectionable on its face, and has not been excepted to by counsel before the proper tribunal, this court can receive no objection to it.

There appears, then, to be no error in the judgment of the circuit court, and it must be affirmed, with costs.

4 H. 131.

DUNLOP & Co. v. BALL.

2 C. 180.

To raise a presumption of payment of a bond, twenty years must have elapsed exclusive of the period of the plaintiff's disability.

THIS was a writ of error to the circuit court for the District of Columbia. The action was debt on a bond, bearing date in 1773. The obligees were British subjects. Lapse of time was relied on to raise a presumption of payment.

E. J. Lee, for the plaintiffs, Swann, for the defendant.

[ * 184 ]

MARSHALL, C. J., delivered the opinion of the court. The only circumstance which could create a question in this case is, that twenty years had not elapsed, exclusive of the period during which the plaintiffs were under a legal disability to recover, before the action was brought.

Blakeney v. Evans. 2 C.

The principle, upon which the presumption of payment arises from the lapse of time, is a reasonable principle, and may be rebutted by any facts which destroy the reason of the rule.

That no presumption could arise during a state of war, in which the plaintiff was an alien enemy, is too clear to admit of doubt. But it is not so clear that upon a bond so old as this, the same length of time after the removal of the disability is necessary to raise the presumption, as would be required if the bond had borne date at the time of such removal.

It appears, from the decisions of the courts of Virginia, from the pleas in bar in the federal courts, and particularly from the observations of the chancellor of Virginia, in the case cited, that it was the general understanding of the inhabitants of that State, that British debts could not be recovered. And, until the year 1793, there was no decision of the superior courts that such debts were recoverable.

The only question is, whether, in case of an old debt, the same time is required to raise the presumption, as in the case of a debt accruing since the impediments have been removed.

In such a case it is not easy to establish a new rule, and

the court think it best to adhere to the old decisions, that [185] twenty years must have elapsed exclusive of the period of

the plaintiff's disability; and are of opinion that the circuit court erred in directing the jury that payment ought to be presumed. The judgment of the court below was reversed.

8 P. 420.

BLAKENEY V. EVANS.

2 C. 185.

In this case the court reversed the judgment of the circuit court for the District of Columbia. The case turned on the construction of a written contract. No opinion was given.

[* 178 ]

Church v. Hubbart. 2 C.

CHURCH V. HUBBART.

2 C. 187.

Seizure for an attempt at illicit trade is not a loss within a policy containing an exception of the risk of illicit trade.

Nations may prevent the violation of their laws by seizures on the high seas, in the neighborhood of their coasts, and there is no fixed rule prescribing the distance from the coast, within which such seizures may be made.

To come within such an exception the seizure must be justifiable under the laws of the country making the seizure.

It is not a consular function to authenticate the laws of a foreign state, and the certificate of a consul to that effect is not evidence.

A copy of a foreign decree, purporting to be certified as correct by a person signing his name and adding to it, "secretary of state for foreign affairs," and affixing his own seal, is not duly authenticated.

A consular certificate is not admissible to prove the correctness of a translation.

If inadmissable evidence of a material fact went to the jury, this court cannot look into the record to see if there was other legal evidence sufficient to justify the verdict; the judgment must be reversed and a new trial had.

ERROR from the circuit court for the district of Massachusetts, in an action on the case, upon two policies of assurance, whereby John Barker Church, Jun., caused to be insured $20,000 upon the cargo of the brigantine Aurora, Nathaniel Shaler master, at and from New York to one or two Portuguese ports on the coast of Brazil, and at and from thence back to New York. At the foot of one of the policies was the following clause: "The insurers are not liable for seizure by the Portuguese for illicit trade;" and in the body of the other was inserted the following: "N. B. The insurers do not take the risk of illicit trade with the Portuguese."

The vessel was cleared out for the Cape of Good Hope, and Mr. Church went out in her as supercargo. On the 18th of April she arrived at Rio Janeiro, where she obtained a permit to remain fifteen days, and where Mr. Church sold goods to the amount of about $700, which were delivered in open day, and in the presence of the guard which had been previously put on board, and to all appearance with the approbation of the officers of the customs. On the 6th of May she sailed from Rio Janeiro bound to the port of Para, on the coast of Brazil, and on the 12th fell in with the schooner Four Sisters, of New York, Peleg Barker master, bound to the same port, who agreed to keep company, and on the 12th of June they came to anchor about four or five leagues from the land, off the mouth of the river Para, in the bay of Para, about west and by north from Cape Baxos, and about two miles to the northward of the cape, "on a meridian

Church v. Hubbart. 2 C.

line drawn from east to west." The land to the westward could not be observed from the deck, but might be seen from the mast-head. The destination of the vessel after her departure from Rio Janeiro was by the master kept secret from the crew, at the request of Mr. Church, and the master assigned as a reason why they came to anchor off the river Para, that they were in want of water and wood, which was truly the case, the greater part of the water on board having been caught a night or two before, and the crew had been on an allowance of water for ten days.

*After the vessels had come to anchor, Mr. Church, with [188] two of the seamen of the brig, and the mate of the schooner

with two of her seamen, went off in the schooner's long boat to speak a boat seen in shore, to endeavor to obtain a pilot to carry the vessels up the river, that they might procure a supply of wood and water, and, if permitted, sell their cargo.

Shortly after the long boat had left the schooner, the latter got under way, (the master of the brig having first gone on board of her,) proceeding towards shore; and observing a schooner-rigged vessel coming from the westward, from whom they expected to get a pilot, they fired a shot ahead of her to bring her to, but not regarding the first shot, a second was fired, when she came to, and her master came on board apparently much alarmed, as if he supposed the schooner and brig to be French. The persons in the Portuguese boat got off in a squall of wind and rain, leaving their captain on board The Four Sisters.

Mr. Church, and the others who went on shore with him, as well as the second mate of the schooner, who was sent on shore with the master of the Portuguese vessel, and in search of Mr. Church, were seized and imprisoned; and on the 14th of June, both the brig and schooner were taken possession of by a body of armed men, on board of three armed boats, and carried into Para. The masters and crews were imprisoned, and underwent several examinations, the principal object of which seemed to be to ascertain whether they were not employed by some of the belligerent powers to examine the coast, &c., whether they had not come with intention to trade; whether they had not traded at Rio Janeiro, and why they had kept so close along the coast. They denied the intention to trade, but alleged that they were obliged to put in for wood and water, and to refit. On the 28th of July, the master of the brig was put on board a vessel for Lisbon, but was taken on the passage by a Spanish vessel, and sent to Porto Rico, from whence he obtained a passage to the United States. The brig Aurora was armed with two carriage guns mounted, and about one hundred weight of powder.