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Yours,

Vanuxem and Clark.

Pres. Del. Ins. Co.

thereto; but these exemptions are not to be un- | from hence to the Isle of France, having had derstood as exempting from capture, or contisca- the register indorsed, and warned by the Brittion, any vessel or goods which shall be liable ish ship Wanderer from proceeding to her des thereto in respect of having entered or departed tination, has returned to this port; by which from any port or place actually blockaded by circumstances her voyage is broken up. We do His Majesty's squadrons or ships of war, or for therefore hereby abandon to your office the being enemies' property, or for any other cause freight insured by policy of 5th December last, than the contravention of this present order." or 6,000 dollars, on freight out valued at 8,000 "And the commanders of His Majesty's ships dollars. of war, etc., are hereby instructed to warn every vessel which shall have commenced her voyage prior to any notice of this order, and shall Thomas Fitzsimmons, Esq. 74] be destined to any port of France, or of her allies, or of any other country at war with His Majesty, or to any port or place from which the British flag as aforesaid is excluded, or to any colony belonging to His Majesty's enemies, and which shall not have cleared as is herein before allowed, to discontinue her voyage, and to proceed to some port or place in this kingdom, or to Gibraltar, or Malta; and every vessel which, after having been so warned, or after a reasonable time shall have been afforded for the arrival of information of this His Majesty's order, at any port or place from which she sailed, or which, after having notice of this order, shall be found in the prosecution of any voyage contrary to the restrictions contained in this order, shall be captured, and, together with her cargo, condemned as lawful prize to the captors."

The Venus returned to the Delaware on the 21st of February, 1808, and, on the 22d, the following letter of abandonment was written by Vanuxem and Clark, the agents of the plaintiff:

Thomas Fitzsimmons, Esq.

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The jury further found that the possession was not *as prize, but merely to prevent [*75 the Venus from prosecuting her voyage to the Isle of France.

Upon this special verdict, judgment, in the court below, was rendered for the defendants. Ingersoll, Jun., for plaintiff in error, contended.

1. That no abandonment at all was necessary in this case.

2. That the abandonment was sufficient. 3. That this was a loss within the policy. 4. That the justification of the captain, from all the circumstances of the case, was a matter of fact to be decided by the jury, and that their finding upon that point was conclusive.

5. If the justification be not a matter of fact for the jury, yet the facts found by the jury are in law a justification.

1 and 2. Upon the question of abandonment he cited 2 Emerig. 174, 175; Marsh. 480; 5th edit. 148; Le Guidon, c. 7, Roccus, in notis, 44, 95; 3 Atk. 195; 1 T. R. 608; Park. 171, 192, 239; Marsh. 517, 559; 2 Valin, 99; Pothier, n. 128; 1 Johns. N. Y. Rep. 181; Emerig. 197; 1 Serg. & R. 84; Jack v. Dougherty, 3 Watts, 151; Avery v. Street, 6 Watts, 247; Graham v. Smith, 25 Penn. St. 323; Lonchelm v. Hensey, 77 Penn. St. 305; McIlvaine v. McIlvaine, 8 Serg. & R. 559; Carter v. Grinells, 67 Ill. 270; Pocock v. Hendricks, 8 Gill. & J. 421; Painter v. Drum, 40 Penn. St. 467; Sherwood v. Marwick, 5 Me. 295. Negligence. Collins v. Barnes, 83 Penn. St. 15; Snively v. Commonwealth, 40 Penn. St. 75; Seabrook v. Herker, 4 Robt. 344. Mistake in istrument. Chonteaux v. Leech, 18 Penn. St. 224; Union R. Co. v. Riegel, 73 Penn. St. 72. Actual notice. Rhines v. Baird, 41 Penn. St. 256. Waiver of notice. Drake v. F. Ins. Co. 3 Grant C. 325. Waiver of tort. Williams v. Wood, 1 Phila. 29. Payment. Homer v. Horner, 40 Penn. St. 475. Ownership of debt sued on. Childerston v. Hammond, 9 Serg. & upon in former suit. Crotzer v. Russell, 9 Serg. & R. 81. Whether a note or security was received in satisfaction, or as collateral. Shewell v. Meredith, 3 Pen. & W. 13; Hart v. Boller, 15 Serg. & R. 162; Evans v. Railroad Co. 5 Leg. & Ins. Rep. 4; Edminster v. Harris, 30 Leg. Int. 110. Whether credits on a written instrument, and receipts produced, though differing slightly, were for the same moneys. Slasher v. Washington Co. 27 Penn. St. 205. Due diligence in making demand. Bennett v. Young, 18 Penn. St. 261. Whether due notice was given of non-payment. Neely v. Merrick, 7 Phila. 170. What is due diligence to charge a guarantor. Woods v. Sherman, 71 Penn. St. 100. The credibility of a witnes. Lamb v. Irwin, 69 Penn. St. 436. An admixture of parol and written evidence draws the whole to the jury.

Sir:-The ship Venus, Captain King, bound the date of an instrument. Farm. Ins. Co. v. Bair, 82 Penn. St. 33. The authenticity of an instrument, if there be any evidence of its execution. Berk's Turnpike Road v. Myers, 6 Serg. & R. 12. The conclusion to be drawn from circumstantial evidence. Cambria Co. v. Tomb, 48 l'enn. St. 387. The sufficiency of parol evidence to prove a contract. Taylor v. Preston, 79 Penn. St. 436. Whether a proposition were an offer of compromise, or of terms of payment, when the language is equivocal. Swan v. Scott, 11 Serg. & R. 155; Cabarga v. Seeger, 17 Penn. St. 514. The nature and extent of agency. McClune v. Cain, 2 Keyes, 203; Thurman v. Wells, 18 Barb. 500; McMorris v. Simpson, 21 Weed, 610; Noble v. McClintock, 2 Watts & S. 152; Slonecker v. Ganett, 48 Penn. St. 415; London Soc'y v. Hagerstown Bk. 36 Penn. St. 498. Evidence of identity and locality, on latent ambiguity in a writing. Ly-R. 68. Whether same matter of defense was passed coming Ins. Co. v. Sailer, 67 Penn. St. 108. Existence of facts sufficient to take a parol sale out of the statute of frauds. Burns v. Sutherland, 7 Penn. St. 103. The meaning of words used in conversation. Brabaker v. Okeson, 36 Penn. St. 519. The deciphering of an illegible instrument. Armstrong v. Barrow, 6 Watts, 266. Whether a parol contract is sufficiently proved. Hastings v. Eckley, S Penn. St. 194. Whether it has been rescinded by the acts of the parties. White v. Reynolds, 3 Pen. & W. 96; Magan v. Lothrop, 4 Watts & S. 316. Whether the circumstances, in the absence of direct proof, show that a deed was intended merely as security for a debt. Rhines v. Baird, 41 Penn. St. 256. Whether, from the acts and declarations of parties through a series of years, an alleged parol trust exists. Achmuts v. Achmuts, 2 Pitts. 58. Whether a seal is that of a corporation. Cressman v. Hilltown Turnpike Co. 15 Leg. Int. 77. Fraud in fact. Therasson v. Peterson, 2 Keyes, 636; Topping v. Lynch, 2 Robt. 484; Ostrander v. Fay, 2 Keyes, 568. But an agreeement between mortgagees that former may sell for his own benefit is fraudulent per se. Russell v. Winne, 37 N. Y. 591; Byrd v. Hall, 2 Keyes, 646; Dormick v. Reichenback, 10

Sidwell v. Evans, 1 Pen. & W. 383; Youst v. Martin, 3 Serg. & R. 423; Curcier v. Phil. Ins. Co. 5 Serg. & R. 113; Stoever v. Stoever, 9 Serg. & R. 434: Harper v. Kean, 11 Serg. & R. 280; Mehaffy v. Share, 2 Pen. & W. 361; McDowell v. Shotwell, 2 Whart. 26; Bomeisler v. Dobson, 5 Whart. 398; Lever v. VanBuskirk, 4 Penn. St. 309; Moore v. Miller, 8 Penn. St. 272.

T. R. 304; Millar, 308, 282; 2 Burr. 1209; | Cranch, 202, Marshall v. Del. In. Co., which
Park, 143; 5 Bos. & Pull. 310, Lucena v. Crau- case has been confirmed in England, in B. R.
ford.
10 East, 329, Bainbridge v. Neilson; 2 Valin,
Upon the 3d, 4th and 5th points, which in-123; 1 Emerig. 537, 538; Marsh. 434; 3 Rob.
cluded the question of justification of the cap-
tain in returning to Philadelphia, he cited Doug.
219, Ship Hope; Marsh. 498, 505; Park, 168,
Ship Grace; 3 Bos. & Pull. 474, Ship Tartar;
3 Caines, 188; 1 Johns. 301; 5 Bos. & Pull.
434; 2 Johns. 264; 1 Rob. 146; Amer edit. 1
Camp. 454, Blackenhagen v. London Assurance
Company. And the case of Dæderer v. Dela-
ware Insurance Company, in the Circuit Court
for the District of Pennsylvania, in April, 1807,
76*] to show that the justification of the
was matter of fact to be left to the jury.
And to show that in point of law the captain
was justified in returning, he cited 2 Burr. 696,
Goss v. Withers; Marsh. 486; Roccus, not. 64;
4 Cranch, 29, Rhinlander v. Penn. In. Co.

That the abandonment was sufficient, and re-
lated back to the time of arrest, when the loss
was total. 1 Emerig. 440; Marsh. 519; 4

When the case is mixed up of law and fact, the
judge may and should leave the whole to the jury.
Poorman v. Smith, 2 Serg. & R. 464; Duffey v.
Pres. Cong. 48 Penn. St. 46; Porter v. Blood, 5
Pick. 56; Valentine v. Piper, 22 Pick. 94; Chase v.
Breed, 5 Gray, 440.

In all questions depending upon a general infer-
ence from many particular facts, the inference is
always one of fact, unless the law has established
some fixed rule, or the inference is one which ad-
mits of no doubt. In such cases the court may de-
termine it as they do other cases. Sessions v. New-
port, 23 Vt. 9; Justice v. Lang, 52 N. Y. 323; Haz-
man v. Improvement Co. 50 N. Y. 53.

The question of what is a reasonable time to do
an act is one of law, when the facts are ascer-
tained. Commonwealth v. Borton, 16 Pick, 442;
Gilmore v. Wilbur, 12 Pick. 120; Holbrook V.
Burt, 22 Pick. 546; Torrey v. Bryant, 16 Pick.
528; Ellis v. Page, 1 Pick. 43; Pratt v. Farrar, 10
Allen, 519.

But the question of reasonable time, when there
is no precise rule of law which governs, is for the
jury. Joy v. Sears, 9 Pick. 4; D. M. Co. v. Gard-
ner, 10 Cush. 88; Haskins v. Ham. Ins Co. 5 Gray,
432, 438.

Preliminary questions of fact are for the court,
and not for the jury. Gorton v. Hadsell, 9 Cush.
508, 511; Lake v. Clark, 97 Mass. 346; Dana v.
Kemble, 19 Pick. 112; Donelson v. Taylor 8 Pick.
390; Com. v. Morrill, 99 Mass. 542; Emerson v.
Prov. H. Co. 12 Mass. 240.

The construction of written instruments is for
the court when no question arises as to the use of
words of art. Howel v. Dewing, 2 Gray, 476; Allen
v. Ins. Co. 5 Gray, 384; Ricker v. Cutter, 8 Gray,
248; Smith v. Faulkner, 12 Gray, 251.

Where the contract is oral, the question what it
is, is for the jury; where its terms are undisputed,
its construction and effect are for the court. Rice
v. D. M. Co. 2 Cush. 80; Short v. Woodward, 13
Gray, 86; Pratt v. Langdon, 12 Allen, 544; Globe
Works v. Wright, 106 Mass. 207; Short v. Wood-
ward, 13 Gray, 86.

What is due diligence in giving notice to in-
dorser, is a question partly of fact and partly
of law, according to the circumstances of each
case. Bartlett v. Robinson, 39 N. Y. 187; 3 N. Y.
272; 7 N. Y. 266; 2 Sandr. 171; 8 Johns. 173; 5
Barb. 681; 3 Hill. 250; 21 Wend. 643.

The following questions are for the jury:
Alteration of instrument, Artisans'
Backus, 31 How. Pr 242.

Bank v.

Adverse possession. Munro v. Merchant, 28
Y. 9.

N.

Fraud. Booth v. Bunce, 33 N. Y. 139; Dygert v.
Remerschnider, 32 N. Y. 629; Matthews v. Rice, 31
N. Y. 457; Knapp v. Smith, 27 N. Y. 277.
What is necessary or reasonable baggage.
son v. R. R Co. 2 Abb. Pr. N. S. 22; Merrill v.
Grinnell, 30 N. Y. 594.

Ran-

Credibility of evidence. Hutchinson v. Bank, 48
Barb. 302.

Fraudulent intent. Topping v. Lynch, 2 Robt.
484; Loeschigk v. Peck, 8 Robt. 700.

158

180, The Hiram; 2 Johns. 336, 352, Scott v.
Libby, and Barker v. Cheviott; 1 Bos. & Pull.
634; Curling v. Long; 7 T. R. 331, Cook v. Jen-
nings; Doug. 219, Milles v. Fletcher; 1 Salk.
198, Brewster v. Kitchell; 1 Emerig. c. 12, § 31,
p. 542, 543, 544; Case of the Colomb. Roccus,
not. 63; 1 Johns. 301; 4 Dal. 417, Symonds v.
Union In. Co.; 9 East, 283, Barker v. Blakes;
1 Emerig. 508; 1 Johns. 249, Schmidt v. United
In. Co.; 1 Bos. & Pull. 200, Driscol v. Bovil;
1 Bos. & Pull. 213, Driscol v. Passmore.
Binney and Hopkinson, contra.

The assured at the time of abandonment
must state a good cause of abandonment. The
only causes assigned by the plaintiff are those
stated in the special verdict, none of which are
sufficient.

The special verdict finds matters of law
which ought not to have been submitted to the

Negligence. Newson v. N. Y. C. R. Co. 29 N. Y.
383; Wilds v. Railroad Co. 29 N. Y. 315, 14 N. Y.
310; Ernst v. Hudson R. Co. 35 N. Y. 9; McPad-
den v. N. Y. C. R. Co. 47 Barb. 247; Burrill v.
Wat. etc. Co. 51 Barb. 105; 25 Hun, 405; 84 N. Y.
241; 83 N. Y. 133, 572, 121, 620.

Probable cause. Miller v. Milligan, 48 Barb. 30;
Latham v. Libby, 38 Barb. 339.

Reasonable time. Smith v. Ins Co. 4 Mass. 668,
670; Reynolds v. Ins. Co. 22 Pick. 191; Roth v. B.
& S. R. Co. 34 N. Y. 548; Hanks v. Drake, 49 Barb.
186; 1 Hilt. 254; 6 Duer, 375; 11 Johns. 241.
Sale by sample. Stone v. Browning, 49 Barb.
244 Andrews v. Kneeland, 6 Cow. 354.

Waiver. Matthews v. Hobby, 48 Barb. 167.
Meaning of slanderous words. 5 Cow. 714; 5
Johns. 211; 12 John. 239; 2 Cow. 479; 6 Cow 76;
4 Wend. 320; 12 Wend. 48.

Acceptance of goods sold. 5 Wend. 253; 25
Wend. 665; 10 N. Y. 285.

Sale. 13 John. 294; 26 Barb. 256.

Warranty. 8 Cow. 25; 10 Wend. 412; 13 Wend.
277; 15 Wend. 490; 1 Den. 378; 5 Den. 617; 22
Barb. 134; 1 Hilt. 266.

Whether signers of petition are a majority. 15
Barb. 255.

Reasonable search.

434.

Clark v. Owens, 18 N. Y.

Deceit. 16 Wend. 494; 15 Johns. 186; 21 Barb.
585; 10 N. Y. 207.

Diligence. Wakeman v. Gowdy, 10 Bosw. 208.
Weight of evidence. Tuttle v. Buck, 41 Barb.417.
False representations. Bruck v. Peyser, 28 How.
Pr. 292.

Handwriting. Magee v. Osborn, 32 N. Y. 669.
Personal identity, 33 N. Y. 501.

Usurious intent. Sumner v. People, 29 N. Y.
337; Elwell v. Chamberlain, 31 N. Y. 611; Price v.
Lyons Bank, 33 N. Y. 55; Beales v. Benjamin, 33
N. Y. 61, 67.

Credit to be given witness. Dunn v. People, 29
N. Y. 523.

Alteration of instrument, whether before or after
execution. Maybee v. Sniffin, 10 N. Y. Leg. Obs.
18; S. C. 2 E. D. Smith, 1; Pringle v. Chambers,
1 Abb. Pr. 58.

Contract, whether it was made, is question of
fact; what it means is question of law. Latham v.
Westervelt, 26 Barb. 256; Chapin v. Potter, 1
Hilt. 366.

Date of instrument bearing no date, question of
fact. Coons v. Chambers, 1 Abb. Pr. 165.

Deceit, and whether plaintiff misled, for the
jury. Moore v. Meacham, 10 N. Y. 207; Peop. v.
Dalton; 2 Wheel. Cr. C. 161; 15 John. 186; 21

Barb. 585.

Delivery, whether absolute or conditional.
Barb. 474; 6 Hill, 208.

25

Exemption of articles from execution. 1 Den.

462.

Law of foreign country, what is, question of
fact. 12 N. Y. 258.

Cranch 6.

whether this order was warranted by the law of nations, because it was still within the peril of restraint of princes. A probability of capture and condemnation was sufficient. Such a reasonable apprehension as a man of firmness might indulge.

February 17. Marshall, Ch. J., delivered the opinion of the court as follows:

jury, viz., that the voyage was broken up, and that the captain was justified in returning. He was opposed by no physical or legal impediment. The jury have found that the arrest was not as prize, but only to prevent the prosecution of the voyage. The exemption from the general operation of the orders in council of the 11th of November, embraces the case of a vessel sailing from a neutral port direct to an enemy's colony. The words are : "Nothing 77] herein contained shall extend to subject This suit was instituted on a policy insuring to capture or condemnation any vessel," "be- the freight of the Venus, from Philadelphia to longing to any country not declared by this or- the Isle of France. The vessel sailed early in der to be subjected to the restrictions incident December, 1807, before the British orders in to a state of blockade, which shall have cleared council, of the preceding November, were known out" "from some port" "of the country to in the United States. On the afternoon of the which she belongs," "direct to some port" "in 16th of January, 1808, while prosecuting her the colonies of His Majesty's enemies." The voyage, she met the British ship of war Wanexpression "shall have" must, in grammatical derer, by whom she was arrested and detained construction, allude to a time which was future until the morning of the 18th, when she was when the order was passed, and also to a time restored to the captain, her papers being first which should have passed, before the arrival | indorsed with these words, "Ship Venus warned of that future time. "Which shall have cleared off the 18th of January, 1808, by H. M. S. Wanout." That is, which shall then have cleared derer, from proceeding to any port in [79 out. When? At the time of the seizure. If at possession of His Majesty's enemies." the time of seizure the vessel shall have cleared out from a neutral port direct to an enemy's colony, she is within the exception to the general order. If it had been intended to except only those which had cleared out before the 11th of November, the date of the order, the expression would have been, which have cleared out, etc.

If the Venus was within the exception to the order, the officer of the Wanderer had no right to prohibit her from proceeding on her voyage; and his prohibition was no justification to the captain in returning to Philadelphia.

But even if the order did include this vessel, yet the prohibition was no justification to the captain; because the Isle of France was only nominally, not actually blockaded.

A constructive blockade, if it be a peril insured against, must be considered as within the denomination of restraints, but, from the terms of the policy, it must be a restraint which comes to the hurt, damage or detriment of the thing insured. It must therefore have been either an actual or legal restraint.

A constructive blockade is not known to the law of nations. Our courts reject it. It is not a legal restraint. 2 Caines, 11; 1 Johns. 253. If the circumstances of the present case are 78*] a justification, then every ill founded apprehension of a timorous man may justify an abandonment. There must be peril in point of fact. The misapprehension of a weak man is not sufficient. 3 Bos. & Pull. 392; 5 Esp. 50; Park, 226. The captain ought to have proceeded, that he might himself see whether the port was actually blockaded or not.

He ought not to have depended upon the information he received from the Wanderer. Harper, in reply.

Edward Medley, second lieutenant. The captain was verbally informed by an officer of the Wanderer that the Isle of France was blockaded, and that the Venus would be a good prize if she proceeded thither.

The captain returned to Philadelphia, where he was disabled from prosecuting his voyage by the embargo. Considering the voyage as broken up, by the arrest and detention of his vessel by the Wanderer, he on that account abandoned to the underwriters.

The principal question arising on this case is, was the captain of the Venus justified in returning to Philadelphia, after having proceeded about 1,000 miles on his voyage, either by the indorsement on his papers, or the verbal information given by an officer of the Wanderer?

A point preliminary to the examination of this question on its merits has been made by the plaintiff in error.

The jury have found, that "by the interruption, detainment, and warning off of the British force, the voyage of the said ship Venus was broken up."

After stating the verbal information given by the British officer respecting the blockade of the Isle of France, is this further finding, "We find, in consequence thereof, that the said Eli sha King was fully justified in returning to the port of Philadelphia."

These findings, it is urged, conclude the court, and render this special verdict equivalent to a general one.

But this court is not of that opinion. It has been truly said, that finding the breaking up of the voyage finds nothing. The question recurs, was the voyage broken up by one of the perils insured against, or by the fault of the [*80 captain? The answer to this question determines the liability of the underwriters.

The captain was under a moral incapacity to proceed on his voyage, and was therefore justified in returning. The policy of Great Britain was to interdict this neutral commerce; it was the great object of the order of the 11th of November, 1807. The words shall have cleared out, mean, shall have now cleared out, i. e., be-bound by that conclusion.

It has been also truly said that the question of justification is a question of law, not of fact. If, as in this case, the jury find the fact specially, and draw the legal conclusion that the fact amounts to a justification, the court is not

fore the date of the order. It is immaterial The case, then, is open to examination on its

real merits, unaffected by the particular find ings which have been noticed.

In proceeding to inquire whether the circumstances which actually occurred justified the captain of the Venus in returning to Philadelphia, it becomes important to ascertain the real hazard of prosecuting his voyage. This essentially depends on the construction of the British orders of council issued in November, 1807. By the plaintiff in error it is insisted, that these orders extend to the direct trade between a neutral port and the colony of an enemy. In support of this construction, a very acute and elaborate criticism has been bestowed on those orders, which appears to the court merely to furnish additional proof of the imperfection of all human language. The intent of the orders to exclude from their operation this direct trade, an intent alike manifested by the context, and by the particular words forming the exception, the universal understanding of both countries, which has been, on more than one occasion, publicly and officially expressed are too conclusive on this point to render it necessary that the court should proceed to review that analysis of this document which has been so well made at the bar.

According to the construction contended for by the plaintiffs in error, an exception professedly made to mitigate the rigor of the general rule, "and still to allow the neutrals the opportunity of furnishing themselves with colonial produce for their own consumption and supply," would be more rigorous than the rule itself, and would interdict that trade by which 81] they were to be supplied with this produce for their own use, with as jealous circum

The

stances of this case did not justify it. Venus might have proceeded, and ought to have proceeded, until she could obtain further information. It would be dangerous in the extreme if any false intelligence received on a voyage might justify a captain in acting as if [*82 that intelligence were true.

The case of Blackenhagen v. The London Assurance Company has a strong bearing on this case, and though that was a decision at Nisi Prius, it is entitled to all the respect which is due to the Court of Common Pleas. After the same opinion had been sucessively given by Lord Ellenborough, and by Sir James Mansfield, it was affirmed by the whole court, and the jury having found against the opinion of the judge, a new trial was granted.

The court gives no opinion on the question how far the underwriters would have been liable, had the orders of council prohibited the trade to the Isle of France. This decision is not intended in any manner to affect that question.

Judgment affirmed with costs.

LEWIS v. HARWOOD.

A bond in an action upon which it would be necessary to assign breaches, and call in a jury to assess damages, is not assignable, under the statute of Virginia.

RROR to the Circuit Court for the District

spection, as the trade professedly prohibited by of Virginia, in an action of debt upon a

the general rule.

It is, then, the clear and unanimous opinion of the court, that the words "shall have," which are used in the exception, relate as well to the time of capture, as to the time of issuing the orders, and that a direct voyage from the United States to a colony of France, was not prohibited.

It being found that the Isle of France was not actually blockaded, and the orders not prohibiting the voyage, it remains to inquire whether the apprehension excited by the warning, or by the verbal communication of a British officer, justified the return of the Venus to Philadelphia.

It has been very truly observed that, in this case, the Venus was not physically incapacitat ed from prosecuting her voyage.

With equal truth has it been observed, that there was no legal impediment to her proceeding, because the voyage was not prohibited by the orders of November, 1807; and, consequently, the indorsement on her papers would not have increased the danger.

There did not, then, at the time the voyage was abandoned, exist, either in fact, or in law, the restraint or detention against which the underwriters insured. From fear, founded on misrepresentation, the voyage was broken up, and the vessel returned to her port of departure.

bond dated February 3, 1784, the condition of which was, that if the obligor should pay to William Whetcroft, his attorney, heirs, executors, administrators or assigns, the sum of £3,000 current money of Virginia, on or before the 1st of January, 1785, then the obligation to

be void.

Provided that if the obligor, on application by the obligee at the town of Fredericksburg, on or after the 1st of January, 1785, should pay to the obligee £3,000 in officers' certificates, of a certain description, or should pay the interest of 6 per cent. from the date of the bond, on such certificates, if not paid, and should annually and punctually pay the said 6 per cent. *when applied to as before men- [*83 tioned, in doing of which the condition of the bond was to be dischargeable by payment of the £3,000 officers' certificates, otherwise the bond was to have its full force and effect.

Upon the pleas of payment, and conditions performed, the verdict and judgment below were for the plaintiff.

The defendant brought his writ of error. Terrell and Swann, for the plaintiff in error, contended,

That the bond was not assignable under the act of assembly of Virginia, and therefore the plaintiff below, who was the assignee, could not recover in his own name.

Whether this might be justified under any The act of 1748 applies only to a bond given circumstances it is unnecessary to determine. for a debt. And by a subsequent act, it is exBut the court is of opinion that the circum- | plained to mean a money debt.

The subsequent act makes tobacco bonds assignable. In the case of Henderson v. Hepburn, 2 Call, 232, 238, it is decided that an assignee cannot maintain an action of debt in his own name upon a bond with a collateral condition. Craig v. Craig, 1 Call. 483.

The condition of the bond is either to pay £3,000 by a certain day, or to pay £3,000 in certificates, or to pay interest on the certificates.

A bond is not assignable unless it be for a debt so certain, as not to require the aid of a jury to assess the damages, or to ascertain the sum due.

February 24. Livingston, J., delivered the opinion of the court as follows: On the 3d 84*] day of February, 1784, the plaintiff executed his bond to William Whetcroft, in the penal sum of £6,000, to which there is a condition in the following words: "The condition of the above obligation is such, that if the said John Lewis shall well and truly pay to the said William Whetcroft, the full sum of three thousand pounds, current money of Virginia, on or before the first day of January, 1785, then this obligation to be void. Provided, and it is to be undersood, that in case the said Lewis, on application by the said Whetcroft to him, in the town of Fredericksburg, on or after the said first day of January, shall pay unto the said William, or his attorney, the sum of three thousand pounds in officers' certificates issued under an act of assembly passed November, 1781, for pay or arrearages of pay and depreciation, or shall well and truly pay the interest of six per centum from the date hereof, on the said certificates, if not paid, and shall moreover annually and punctually pay the said six per cent. when applied to as before mentioned, in doing of which the condition of this bond is discharge. able by payment of the said three thousand pounds officers' certificates; otherwise the bond shall have its full force and effect.

This bond was assigned to the defendant on the 3d of August, 1790, and an action at law was brought on it in the name of the assignee in the Circuit Court of the United States for the District of Virginia, when judgment was rendered for the defendant.

On this judgment a writ of error has been sued out, and the plaintiff alleges that the same should be reversed, because the bond on which this action is brought is not assignable under the laws of Virginia, so as to enable the assignee to prosecute at law in his own name. Other causes of error have been assigned, but the opinion of the court being with the plaintiff on the first point, it will not be necessary to take any notice of the objections which have been made to the pleadings, or to the imperfect finding of the jury.

85] A bond not being assignable at common law, the present question must turn altogether on the statutes of Virginia. It seems to have been for a long time doubted, after pass ing the act of 1748 (c. 27), whether any but bonds conditioned to pay money or tobacco were assignable. That question was, however, at last settled by the Court of Appeals, in the case of Henderson v. Hepburn, in which it was decided that a bond with a collateral condition

was not, within the meaning of this act, assignable. With this decision the court not only feels no inclination to interfere, but thinks it a fair and just exposition of the acts which had then been passed on this subject. The bonds intended by the legislature were most clearly such as were to become void on the payment of a sum certain, and where no intervention or assessment of a jury was necessary. Bonds which require particular breaches to be assigned, damages on which were to be estimated or liquidated by a jury, do not appear to have been contemplated.

It being then settled that bonds with collateral conditions were not assignable under the laws in force at the time of the making of this assignment, it only remains to ascertain the true character of the condition of the bond on which this action is brought.

Although by payment of £3,000 on or before a certain day, the obligor might have discharged himself from the penalty, it was part of the condition that, on the application of the obligee, by a certain day, a payment in certain certificates, which were not money, might be substituted. This created an alternative by which the penalty might be discharged either by money or officers' certificates; and although the consent of both parties might be necessary to a payment in the latter way, still, as it made part of the written contract, the court cannot but perceive that, on a certain contingency, it was to be considered as a bond on which it might, as it did, become necessary to assign breaches and call in a jury to assess damages. If we look at the record, we shall find the *parties, their counsel and the jury [*86 treating it as a bond of this description.

It is the opinion, therefore, of the court, that this bond was not assignable under the laws of Virginia, and that the judgment of the Circuit Court for the District of Virginia must be reversed, and judgment on the verdict be arrested.

RIDDLE AND COMPANY.
V.

MANDEVILLE AND JAMESSON.

The court below upon a mandate on reversal of Its judgment may award execution for the costs of the appellant in that court.

MANDATE had been issued upon the A reversal of the decree in this case at the last term, in which, "this court, proceeding to give such decree as the said Circuit Court ought to have given, doth decree and order, that the defendants pay to the plaintiffs the sum of 1,500 dollars, that being the amount of the note in the bill mentioned, together with interest thereon from the time the same became due, you are hereby commanded, that such execu tion and proceedings be had on the said decree of the said Supreme Court, as, according to equity and justice, and the laws of the United States, ought to be had, the said writ of error not withstanding."

Nothing having been said respecting the costs, the court below had not issued execution for the costs of the appellant.

E. J. Lee moved the court for a further mandate to the court below, to award the costs of that court.

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