Commercial Domicil.-Commercial Law. continues. The Friendschaft, 3 Wheat. 14; 4 | loses his neutral character. The Chester v. The Cond. Rep. 189. Experiment, 2 Dall. 42. 25. British subjects resident in Portugal, though entitled to great privileges, do not retain their native character; but acquire that of the country where they reside and carry on their trade. Ibid. 26. If a party put himself in itinere, to return to his native country, he is already deemed to have reassumed his native character. The St. Lawrence, 1 Gallis. C. C. R. 467. 27. Citizens, domiciled in the enemy's country, must actually remove before the breaking out of hostilities; otherwise their property, then afloat, will be liable to capture. The St. Lawrence, 1 Gallis. C. C. R. 467. The Frances, 1 Gallis. C. C. R. 614. 28. In general, the national character of a person is to be decided by that of his domicil; if that be neutral, he acquires the neutral character; if otherwise, he is affected with the enemy's character. The San Jose Indiano, 2 Gallis. C. C. R. 268. 29. But the property of a person may acquire a hostile character, altogether independent of his own peculiar character derived from residence. The origin of the property, or the traffic in which it is engaged, may stamp it with a hostile taint, although the owner may happen to be a neutral, domiciled in a neutral country. Such are the instances of engagements in the colonial, coasting, fishing, or other privileged trade of the enemy. Ibid. 30. The general principle is, that where a person is engaged in the ordinary or extraordinary commerce of an enemy's country, upon the same footing, and with the same advantages as native resident subjects, his property, so employed, is to be deemed incorporated into the general commerce of that country, and subject to confiscation, be his residence where it may. Ibid. 31. Every man is viewed, by the law of nations, as a member of the society in which he is found. Residence is prima facie evidence of national character, susceptible, however, at all times, of explanation. If it be for a special purpose, and transient in its nature, it shall not destroy the original or prior national character. But if it be taken up, animo manendi, then it becomes a domicil, superadding to the original or prior character, the rights and privileges, as well as the disabilities and penalties of a citizen or subject of the country in which the residence is established. Johnson v. Sundry Articles of Merchandise, 6 Hall's Am. Law. Journ. 68. 32. An inhabitant or resident, is a person coming into a place with an intention to establish his domicil or permanent residence, and, in consequence, actually resides there. The time is not so essential as the intent, executed by making or beginning the actual establishment, though it is abandoned in a longer or shorter period. United States v. The Penelope, 2 Adm. Decis. 438. 33. The subject of a neutral power, residing and carrying on trade in the enemy's country, 34. Whether an American citizen may, independently of any legislative act to that effect, throw off his allegiance to his native country or not, it at least cannot be done without a bona fide change of domicil. It can never be asserted as a cover for fraud, or as a justification of the commission of a crime against the country, or for a violation of its laws, where this appears to be the intention of the act. The Santissima Trinidad, 7 Wheat. 283; 5 Cond. Rep. 284. 35. A British subject domiciled in the United States, though temporarily absent in a British island, is, for the purposes of trade, held to be an American merchant. The Ship Ann Green, 1 Gallis. C. C. R. 274. 36. The question of enemy or friend, depends on the domicil of the party. A shipment made to Canada, by a British subject, domiciled in the United States, but temporarily at Jamaica, as a British subject, does not, if made in time of peace, affect the property with a hostile character, if war breaks out during the voyage. But it is otherwise, if the shipment was made when the war was known. Ibid. 37. Length of time, connected with other circumstances, may go very far to constitute domicil. Upon a residence for temporary purposes there may be engrafted all the effects of permanent settlement, if it be continued for a great length of time, and with conduct which demonstrates that new views and new connections have supervened upon the original purposes; but, on the other hand, mere length of time cannot be decisive, where the purpose is clearly proved to have been temporary, and still continues so, without any enlargement of views: and even the shortest residence, if with a design of permanent settlement, stamps the party with the national character. The question, after all, results in an inquiry into the intention and conduct of the party, and it is extremely difficult to lay down any general rule upon the subject. Ibid. 284. 38. Domicil, in an enemy's country, gives a hostile character; and the same principle has been applied to a house of trade established in an enemy's country, though the parties might have a neutral domicil. The Society for Propagating the Gospel, &c., v. Wheeler, 2 Gallis. C. C. R. 130. COMMERCIAL LAW. 1. In the port of Liverpool, a collision took place between two American ships, both laden with cargoes, and ready to sail for the United States; one of the ships was much injured, was obliged to re-land her cargo, which was much damaged, and to undergo considerable repairs. The vessel which did the injury had a pilot on board, and was coming out of dock. The owner of the vessel which had done the damage claimed that, by the statutes of Great Britain, COMMERCIAL LAW. Commercial Law. he was not responsible for any damage occa- 2. The decisions of the courts of England establish that the master and owner of a vessel, in the port of Liverpool, having a pilot on board, in cases when by the statutes a pilot is required to be on board, are not answerable for any loss or damage by collision; nor are they prevented from recovering on any contract of insurance by reason of any default or neglect on the part of the pilot. Ibid. of the paper transmitted, it always appeared to originally usurious, however remote or often re- for a discount upon a note, to be secured collate10. Where there was an application to a bank rally, and the party applying drew checks upon the bank, which were paid before the note was actually discounted; and the bank treated the note, when discounted, as having been so on the day of its date, instead of a subsequent day, on the party, it was held not to be usury. Ibid. which its proceeds were carried to the credit of 11. The court below was right in refusing an they might presume usury as a fact. Ibid. of usury is exclusively for the decision of the 12. In cases of a written contract, the question court. Ibid. 3. The plaintiffs in the circuit court claimed damages for a loss of a market of the cargo, by reason of the detention of their vessel for re-instruction to the jury that, upon such evidence, pair at the port of Liverpool. They asserted a right to value the cargo at what it would have brought had it arrived in due season at the port to which the vessel was destined, when she sustained the injuries by the collision. The court said: It has been repeatedly decided in cases of insurance, that the insured cannot recover for the loss of probable profits, at the port of destination; and that the value of the goods at the place of shipment is the measure of compensation. There can be no good reason for establishing a different rule in cases of loss by collision. It is the actual damage sustained by the party, at the time and place of the injury, that is the measure of damages. Ibid. 4. A letter of guarantee, written in the United States, and addressed to a house in England, must be construed according to the laws of that country. Bell and Grant v. Bruen, 1 Howard, 169. 5. Extrinsic evidence may be used to ascertain the true import of such an agreement, and its construction is matter of law for the court. Ibid. 6. In bonds, with conditions for the performance of duties, preceded by recitals, the undertaking, although general in its terms, is limited by the recital. Ibid. 7. But commercial letters are not to be construed upon the same principles as bonds, but ought to receive a fair and reasonable interpretation, according to the true import of terms, to what is fairly to be presumed to have been the understanding of the parties; and the presumption is to be ascertained from the facts and circumstances accompanying the entire transaction. Ibid. in Walton v. Shelly, 1 T. R. 296, sustained as it 13. The court adheres to the rule laid down has been by the decisions of this court in The Bank of the United States v. The Bank of the Metropolis v. Jones, 8 Peters, 12; and Scott v. Lloyd; viz., that a party to a Dunn, 6 Peters, 57; negotiable paper, having given it value and currency by the sanction of his name, shall not afterwards invalidate it by showing, upon his own testimony, that the consideration on which derson, 3 Howard, 73. it was executed was illegal. Henderson v. An drew bills of exchange upon his debtor, residing 14. When a creditor, residing in Louisiana, in South Carolina, which bills were negotiated the creditor had no right to lay an attachment to a third person, and accepted by the drawee, upon the property of the debtor, until the bills had become due, were dishonoured, and taken 483. up by the drawer. Black v. Zacharie, 3 Howard, was extended to the debtor for the time to which 15. By the drawing of the bills, a new credit they ran. Ibid. ments for debts not yet due, relate only to ab- tions situated in Louisiana, does not pass under 8. Where there have been, for several years, mutual and extensive dealings between two banks, and an account current kept between them, in which they mutually credited each other with the proceeds of all paper remitted for collection, when received, and charged all costs of protests, postage, &c.; accounts regularly transmitted from the one to the other, and settled upon these principles; and upon the face | Ibid. assignment be sufficient to transfer it by the Commission.-Commission by Brevet.-Commissioners to adjust Land Titles in Louisiana. 19. The laws of Louisiana do not prohibit the | ture of the transaction; the principal may treat assignment of equitable interests in the state, the sub-agent as his agent, and when he has by residents of other states. lbid. received the money, may recover it in an action for money had and received. Wilson & Co. v. Smith, 3 Howard, 763. 20. Personal property has no locality. The law of the owner's domicil is to determine the validity of the transfer or alienation thereof, unless there is some positive or customary law of the country where it is found, to the contrary. Ibid. 21. Where a general objection is made in the court below, to the reception of testimony, without stating the grounds of the objection, this court considers it as vague and nugatory; nor ought it to have been tolerated in the court below. Camden v. Doremus, 3 Howard, 515. 22. Where, at the time of the endorsement and transfer of a negotiable note, an agreement was made that the holder should send it for collection to the bank at which it was, on its face, made payable, and in the event of its not being paid at maturity, should use reasonable and due diligence to collect it from the drawer and prior endorsers, before resorting to the last endorser, the holder is bound to conditions beyond those which are implied in the ordinary transfer and receipt of commercial instruments. Ibid. 23. Evidence of the general custom of banks to give previous notice to the payor of the time when notes will fall due, was properly rejected, unless the witness could testify as to the practice of the particular bank at which the note was made payable. Ibid. 24. A presentment and demand of payment of the note at maturity, within banking hours, at the bank where the note was made payable, was a sufficient compliance with the contract to send it to the bank for collection. Ibid. 25. The record of a suit brought by the holder against the maker and prior endorsers was proper evidence of reasonable and due diligence to collect the amount of the note from them; and it was a proper instruction, that if the jury believed that the prior endorsers had left the state and were insolvent, the holder of the note was not bound to send executions to the counties where these endorsers resided at the institution of the suit. Ibid. 26. The diligent and honest prosecution of a suit to judgment, with a return of nulla bona, has always been regarded as one of the extreme tests of due diligence. Ibid. 27. And the ascertainment, upon correct and sufficient proofs, of entire and notorious insolvency, is recognised by the law as answering the demand of due diligence, and as dispensing with the more dilatory evidence of a suit. Ibid. 28. If the holder cannot obtain a judgment against the maker for the whole amount of the note, in consequence of the allowance of a setoff as between the maker and one of the prior endorsers, this is no bar to a full recovery against the last endorser, provided the holder has been guilty of no negligence. Ibid. 29. Whenever, by express agreement of the parties, a sub-agent is to be employed by an agent to receive money for the principal; or where an authority to do so may fairly be implied from the usual course of trade, or the na 30. If, in such case, the sub-agent has made no advances, and given no new credit to the agent on account of the remittance of the bill, the sub-agent cannnot protect himself against such an action by passing the amount of the bill to the general credit of the agent, although the agent may be his debtor. Ibid. See BANKS; BANKER; BANKRUPT AND BANKRUPTCY; BILLS OF EXCHANGE AND PROMISSORY NOTES; DAMAGES; GUARANTEE; INSURANCE; LIEN; PARTNERSHIP; PIRACY AND PIRATICAL ACTS. COMMISSION. Where a consignee, with a del credere commission, sells goods for his principal at a certain price, and afterwards, upon a suspension of specie payments in the state, receives payment in bank notes of the state banks at a depreciated value, he is not entitled to deduct the amount of the depreciation from the debt, but must account for the full price, at the specie or par value, to his principal. Dunnell v. Mason, 1 Story's C. C. R. 543. COMMISSION BY BREVET. 1. The defendant, being a lieutenant in the army of the United States, was commissioned, June 30th, 1834, as a captain by brevet, to take rank from September 30th, 1829: Held, by the circuit court, that the commission took effect retroactively, and that the defendant was entitled to receive the pay of a captain by brevet, for services rendered as captain from the 30th of September, 1829. United States v. Vinton, 2 Sumner's C. C. R. 299. 2. Where a brevet commission in the army of the United States is conferred upon a party, to take rank from a prior date, the pay and emoluments of the rank conferred, follow, as an incident, from this date, whenever the party has rendered services according to that rank. Ibid. COMMISSIONERS TO ADJUST LAND TITLES IN LOUISIANA. The acts of the commissioners appointed to adjust and settle land titles in Louisiana, under the acts of congress authorizing and confirming the same, are conclusive as to all titles to lands which have been confirmed, according to the provisions of the different acts of congress on the subject. Strother v. Lucas, 12 Peters, 410. Commission to take Testimony. COMMISSIONS TO VESSELS OF WAR, AND TO PRIVATEERS. 1. A commission, regularly issued, may be forfeited by grossly illegal conduct; and a commission fraudulently obtained is, as to vesting the interests of prize, utterly void. But a commission may be lawfully obtained, although the parties intended to use it as a cover for illegal purposes. The Experiment, 8 Wheat. 261; 5 Cond. Rep. 433. 2. If a commission is fairly obtained, without imposition or fraud upon the officers of government, it is not void merely because the parties privately intended to violate, under its protection, the laws of their country; nor is the abuse of their commission, per se, evidence that it was originally obtained by fraud and imposition. Ibid. 3. Where a capture has actually taken place, with the assent, either expressed or implied, of the commander of the squadron, the prizemaster may be considered as a bailee to the use of the whole squadron who are to share in the prizemoney, and thus the commander is made responsible; but not so as to mere trespasses, unattended with a conversion to the use of the squadron. lbid. 4. A commission to capture enemy's property, extends to all neutral property seized in violating neutral duties. Maisonnaire v. Keating, 2 Gallis. C. C. R. 339. COMMISSION TO TAKE TESTIMONY. 1. Depositions taken under a commission issued at the instance of the defendant, may be read in evidence by the plaintiff, although the plaintiff had no notice of the time and place of taking them. Yeaton v. Fry, 5 Cranch, 335; 2 Cond. Rep. 273. 2. The court will not award a commission to take the testimony of absent witnesses until the commissioners are named. Van Stephorst v. The State of Maryland, 2 Dall. 401; 1 Cond. Rep. 2. 3. Under particular circumstances the court allowed a special commission, to take the depositions of witnesses, with instructions: 1. That the interrogatories should be filed in the court here by both parties previous to the issuing of the commission. 2. That the commissioners should be directed not to admit any additional interrogatories. 3. That neither parties nor counsel should be allowed to appear before the commissioners. Cunningham v. Otis, 1 Gallis. C. C. R. 166. tions will be sustained. Armstrong v. Brown, I Wash. C. C. R. 43. 5. Circuit court of Pennsylvania. - A commission to take testimony, which had issued in a case in which the United States was a party, was set aside, because it had been opened by an officer of the government before it came into the hands of the clerk; and a new commission was ordered, to which the original papers, which had been annexed to the first commission, were attached. The United States v. Price's Adm'rs., 2 Wash. C. C. R. 356. 6. A commission to take evidence in an enemy's country, in a prize cause, is contrary to the established practice in a prize court. The Diana, 2 Gallis. C. C. R. 93. 7. Each interrogatory annexed to the commission, should be substantially answered at least; and the omission so to answer, is fatal to the whole testimony of the witness: although, in his answer to the general interrogatory, the witness has said he knows nothing material to either party. Ketland v. Bissett, 1 Wash. C. C. R. 144. 8. Where a commission to take evidence was executed in a foreign country, the government of which refused to let the commissioners act, considering it an assumption of the sovereign power; but the commission was executed by a judge of the court in the presence of the commissioners; the depositions were permitted to be read, as otherwise the course of justice might be impeded. In such a case the evidence must be fairly taken; all the evidence on each side must be put and answered. If, however, the interrogatories have been substantially put and answered, it is sufficient. Winthrop v. The Union Ins. Co., 2 Wash. C. C. R. 7. 9. It is no objection to the reading of a deposition, taken under a commission to a foreign country, that the same witness had been previously examined and cross-examined in the United States. Ibid. 10. A joint commission to take the depositions of witnesses, must be executed by all the commissioners, to make the depositions evidence; although the commissioners named by the party making the objection, after proceeding some length in the examination of witnesses, withdrew. Muns v. Dupont, 2 Wash. C. C. R. 463. 11. The provisions of the judiciary act of 1789, ch. 20, sec. 30, as to taking depositions de bene esse, does not apply to cases pending in the supreme court of the United States, but only to cases in the district and circuit courts. Testimony, by depositions, can only be regularly taken for the supreme court, under a commission issuing according to the rules of the court. The Argo, 2 Wheat. 287; 4 Cond. Rep. 119. 4. Commissioners to take depositions of wit- 12. Depositions taken according to the proviso nesses, act under a special authority derived in the thirteenth section of the judiciary act of from the court, which must be strictly pursued; 1789, ch. 20, under a "dedimus potestatem," and, therefore, where a commission had issued "according to common usage, where it may be to four commissioners jointly to take depositions, necessary to prevent a failure or delay of justice," and it was executed and returned by three only, are, under no circumstances, to be considered although both of the commissioners nominated as taken de bene esse, whether the witness reby the defendant had acted, yet he may object side beyond the process of the court, or within to the reading of the depositions, and the objec-it; the provision of the act relative to deposi Commission to take Testimony. tions de bene esse, being confined to those taken | pointed by the court; and although they may under the enacting part of the section. Ser- be nominated by the parties, they are not their geant's Lessee v. Biddle et al., 4 Wheat. 508; 4 agents. Ibid. Cond. Rep. 522. 13. A commission was issued in the name of Richard M. Meade, the name of the party being Richard W. Meade. This is a clerical error in making out the commission, and does not affect the execution of the commission. Keene v. Meade, 3 Peters, 6. 14. It is not known that there is any practice in the execution or return of a commission, requiring a certificate, in whose handwriting the depositions returned with the commission were set down. All that the commission requires is, that the commissioners, having reduced the depositions taken by them to writing, should send them with the commission, under their hands and seals, to the judges of the court out of which the commission issued. But it is immaterial in whose handwriting the depositions are; and it cannot be required that they should certify any immaterial fact. Ibid. 8. 23. If all the interrogatories which accompany a commission, are substantially, although not severally answered, it is sufficient; and this principle applies as well to the answers given to the interrogatories annexed to letters rogatory, as to answers under a commission. Nelson v. The United States, Peters' C. C. R. 235. 24. Pennsylvania.-The circuit court of the United States will issue letters rogatory, for the purpose of obtaining the testimony of witnesses, when the government of the place where the evidence is to be obtained, will not permit a commission to be executed. Ibid. 25. The testimony of a witness, taken under a commission, directed to five persons, or any one of them, cannot be read in evidence if another person than the commissioner, and who was not named in the commission, assisted in taking the examinations of the witnesses. Willings v. Consequa, Peters' C. R. R. 302. 15. A certificate by the commissioners, that 26. A commission, directed to A, to be exeA. B., whom they were going to employ as a cuted in one county, cannot be executed by him clerk, had been sworn, admits.of no other rea- in another. The commissioner ought to state sonable interpretation, than that A. B. was the when and where the commission was executed. person appointed by them as clerk. Ibid. 9. He acts under a special authority. The depo16. It is not necessary to return with the com-sitions were rejected, being obnoxious to this mission the form of the oath administered by principle. Bodereau et al. v. Montgomery et al., the commissioners to the witnesses. When the 4 Wash. C. C. R. 186. commissioners certify the witnesses were sworn, and the interrogatories annexed to the commission were all put to them, it is presumed that they were sworn and examined as to all their knowledge of the facts. Ibid. 10. 17. Circuit court of Pennsylvania.-The plaintiffs issued a commission to take testimony abroad, and the defendant joined in the same, by filing cross-interrogatories: but the plaintiffs afterwards found a witness to prove the facts they desired to establish by the commission, and they abandoned it. The court said: a trial under those circumstances, would be a surprise on the defendant. Le Roy v. The Delaware Ins. Co., 2 Wash. C. C. R. 223. 18. If the cross-interrogatories are not put to a witness examined under a commission to take testimony, the examination of the witness cannot be read on the trial. Gilpins v. Consequa, Peters' C. C. R. 86. 19. It is no objection to a deposition taken under a commission to Holland, that it is in the English language; the commissioners before whom it was taken being Dutchmen, and not stating that they had the assistance of an interpreter. Ibid. 20. It is not an objection to the evidence taken under a commission, that the cross-interrogatories were not put to each witness, immediately after he had answered the chief interrogatories, but were put to him after all the chief interrogatories had been answered by all the witnesses. Ibid. 21. A commission is not defectively executed, because the commissioners and their clerk were not sworn. Ibid. 22. Those who execute a commission are ap 27. If the general interrogatory, under a commission, is not answered, it is a fatal objection to the whole deposition; all the interrogatories must be substantially answered. Dodge v. Israel, 4 Wash. C. C. R. 323. 28. Query, If it is not an objection to a deposition, that it was committed to writing by the witness before he was sworn; and whether exhibits, referred to in a deposition, ought not to be annexed t the commissioners to the deposition, or so designated by them as to leave no reasonable doubt of their identity? Ibid. 29. If reasonable notice of formal objections to the depositions taken under a commission, be not given, the court may be induced to set aside a verdict or nonsuit rendered in consequence of this objection, without costs. Ibid. 30. Depositions taken under a commission to another state, cannot be read, unless proof be given that a copy of the interrogatories, and a written notice of the rule for a commission, and the names of the commissioners, was served on the opposite party or his attorney, according to one of the rules of the circuit court of Pennsyl vania. Lessee of Rhoads & Snyder v. Selin, 4 Wash. C. C. R. 715. 31. It is no objection to a deposition, that a material part of the evidence comes out under the general interrogatory. Ibid. 32. A commission was issued under a rule to take depositions at Selinsgrove, and was endorsed "commission to Selinsgrove." It should appear by the certificate of the commissioners, or otherwise, that the depositions were taken at the place indicated, or they cannot be read. Ibid. 33. Affidavits to be used as further proof, in causes of admiralty and maritime jurisdiction in |