May 8th,

1811.

II. And be it further enacted, That were no goods or effects The BERMUDA. of such absent or absconding person in the hands of his attorney, factor, agent or trustee, shall be exposed to view, or can be come at so as to be attached, it shall and may be lawful to and for any person entitled to any such action as aforesaid, to file a declaration against such absent or absconding person, in the clerk's office of the inferior court of common pleas in the same county where such factor, agent or trustee lives, therein particularly setting forth his debt and damage, how and for what cause it arises; and to cause the attorney, factor, agent or trustee, of such absent or absconding person, to be served with a summons out of the office, annexed to the said declaration, fourteen days before the sitting of the court, for his appearance at such court; which being duly served, and return thereof made under the officer's hand, shall be sufficient in the law to bring forward a trial, without other or further summons, unless the principal be an inhabitant, or hath for some time had his residence within this province, in which case a like summons with an attested copy of the declaration annexed, shall also be left at his dwelling-house, lodging or place of his last and usual abode, fourteen days before the sitting of the court; and such attorney, factor, agent or trustee, upon his desire, shall be admitted to defend the suit on behalf of his principal throughout the course of the law, and an imparlance shall be granted of course at two terms successively, that he may have an opportunity to notify his principal thereof; and at the third term, without special matter alledged and allowed in bar, abatement, or further continuance, the cause shall peremptorily come to trial; and if judgment be rendered for the plaintiff, all the goods, effects or credits of such absent or absconding person, in the hands of such attorney, factor, agent or trustee, which were in his hands at the time of his being served with the summons and declaration aforesaid, to the value of such judgment, (if so much there be) shall be liable and subjected to the execution granted upon such judgment, for or towards satisfying the same; and from the time of serving the summons as aforesaid, shall be liable and secured in the law, in his hands to answer the same, and may not be otherwise disposed of or converted.

VII. And be it further enacted, That the goods, effects or credits of any absent or absconding person, so taken as aforesaid by process and judgment of law, out of the hands of his attorney, factor, agent or trustee, by any of his creditors, shall fully acquit

The BERMUDA. and for ever discharge such attorney, factor, agent or trustee, his

May 8th, 1811.

executors or administrators, of, from and against all actions and suits, damages, payments, and demands whatsoever, to be asked, commenced, had, claimed or brought by his principal, his executors or administrators, of and for the same; and if any attorney, factor, agent or trustee, shall be molested, troubled, or sued by his principal for any thing by him done in pursuance of this act, he may plead the general issue, and give this act in evidence.

VIII. Provided nevertheless, and be it further enacted, That any absent or absconding person, against whom judgment shall be recovered as aforesaid, shall be entitled to a re-hearing of such cause at any time within three years after such judgment; and the plaintiff in such action, before any execution shall issue on such judgment, shall give sufficient security to the satisfaction of the court, for the re-payment of all such monies as may be levied by virtue of such execution, in case the said judgment should be reversed on such re-hearing as aforesaid.

July 29th,

1811.

Breach of blockade of Bourdeaux. Carrying pas sengers no excuse.

FOR

The TAMAAHMAH, Skiddy.

NOR the captors, the King's Advocate and C. Uniacke contended, that the ship was bound from New York to Bourdeaux, in direct violation of the order in council of April 1809. That her being in ballast could be no excuse, as a decision upon that point, directly militating against the present claim, had been given in the High Court of Admiralty, in the case of the Comet, Mix,* it being there held, that " generally where a neutral ship, though in ballast, is proceeding to a blockaded port, it must be supposed that she is going there for the purposes of trade." It was also contended that this ship was sailing under a French pass, and with French passengers, some of whom are officers of government, engaged in public pursuits; that the ship herself is contraband of war, being fitted for a *Edw. Vol. I. P. 32.

privateer, and intended, perhaps, for sale at her port of destination, as in the case of the Brutus.* That the ship, the voyage, and the passengers, are all subjects of suspicion, and if there had been no breach of the order in council, the Court would not be justified in granting the restitution of such questionable property, sailing under an avowed pass of the enemy.

On the part of the Claimants, the Solicitor General and Robie.---The principle established in the case of the Comet cannot affect the present case. This ship, it is true, was proceeding in ballast to a blockaded port, but as it evidently appears, not for the purposes of trade, as neither the condition nor employment of the vessel could warrant the conjecture. She was carrying passengers from her own neutral port to a port of the enemy, and if those passengers were not of the description that could render the transportation of them illegal, the situation of the port to which they were going cannot vary the case. A question then arises as to the condition and quality of the passengers. If all, or any of them are of military appointment, or in those official stations which attach them to the immediate service of their government, the carrying them even from a neutral port to that of their country, would be an acknowledged breach of the law of nations. But the depositions taken in the cause can warrant no such conclusion. The master, on the contrary asserts, that there were fifty passengers on board, but he does not know their names, rank, profession, or occupation; he believes most of them were distressed inhabitants of the French colonies going to France; they had no commissions that he knows of, nor had they any interest or concern in the vessel. It must therefore be presumed that they were non-combatants, and people in * Decided at Halifax, and confirmed on appeal.

The TAMAAHMAH,

July 29th,

1811.

'The ТАМААНМАН.

July 29th,

1811.

private stations, not then acting in the service of government; and as the captors thought fit to put them on shore in America, the want of evidence with regard to them should not prejudice the claimants. The pass found on board the ship is nothing more than a consular certificate, stating the vessel to have been engaged for the service of the passengers, and giving her no particular privilege that could constitute a French character. As to her being contraband of war, and going to an enemy's port for sale, there is no evidence whatever of that fact, as in the case of the Brutus, and the ship herself is by no means equipt or calculated for the measure.

SENTENCE.--- Dr. Croke.

The Tamaahmah, Skiddy, was a brig taken by the Melampus, Hawker, bound on a voyage from New York to Bourdeaux. She had no cargo, and there were fifty French passengers. A claim was given by J. R. Skiddy, the master, for himself, Stephen Jurnal, and Benjamin Desobry, of New York. On petition of the King's Advocate, a commission issued to examine the vessel, if she was fit for a vessel of war; by the return of which, it appeared that she might easily be converted into a ship of war. By the order of council, Nov. 11, 1807, "All ports of France shall be subject to the same restrictions in point of trade and navigation, (with certain exceptions) as if the same were actually blockaded by His Majesty's naval forces in the most strict and rigorous manner."

That vessels going in ballast are subject to confiscation has been repeatedly decided. As in the Comet, and under the same order in the Augustine Margaretta. Therefore this vessel is not exempted

*Scott, II. p. 147.

from the penalties of breaking the blockade by having no cargo on board, and is prima facie, liable to confiscation, unless the claimant can make out ground of exemption.

The question then is, whether she can derive any exemption from the nature of the business in which she is employed? It has been alledged, that she is a packet boat, and that such are intitled by courtesy to favour.

Carrying passengers is a trade undoubtedly. It is the letting out of a vessel with certain accommodations for the persons who may have occasion for it, for a valuable consideration.

This is not the case of an ordinary packet boat. It is the first time the vessel ever made a voyage in that capacity; two previous voyages to England, with cargoes are proved.

Though the vessel was going from the United States, there is not a single subject of that country on board as a passenger, they are all French.

It is not a packet in the service of the government of the United States, or any way authorised by that government.

The question then, whether packet boats may not lawfully enter a blockaded port, and of the comity to which they may be entitled in war, does not arise. The case must be considered as that of a vessel engaged in one particular voyage, and under the particular circumstances in which it is found.

Here is a vessel then fitted out for passengers only, carrying fifty French persons, men, women, and children, how many of each is not specified, from the United States to Bourdeaux. The master professes to have lost the list of them, and not to know their names, rank, or profession, but believes most of them were distressed inhabitants of the

S

The TAMAAHMAH.

July 29th,

1811.