King's officers in the course of the voyage insured. The fourth count stated the loss to be by the perils of the sea. The fifth count was on a policy dated the 15th of August, 1796, effected on account of Collet and one Anthony Butler, on goods warranted American, on board the said ship Argonaut (American) "at and from Madeira to her last port of discharge in India, with liberty to touch, stay, and trade at all ports, places, and islands, whatsoever and wheresover, as well at the Cape of Good Hope as on this or on the other side of it." This count stated the goods to have been shipped on board the Argonaut at Madeira on the 1st of June, 1796, and a like seizure and detainment by the same persons in the course of the voyage insured. The sixth count stated the loss by the perils of the sea. There were also counts for money paid, and money had and received. The general breach assigned was non-payment.

The defendant pleaded the general issue; and on the trial the jury found a special verdict; which, after stating the making of the policies as mentioned in the 1st, 3rd, and 5th counts, and for the benefit of the parties therein named, set forth in substance as follows:

The ship Argonaut, on the 12th of June, 1795, was purchased at Philadelphia in the United States of America, by John Collet and A. Butler, who to the time of the loss hereinafter stated, continued owners thereof in equal moieties. Collet, on the 25th of July, 1795, sailed in the ship as master thereof, from Philadelphia, with a cargo of corn and flour for France, with a view of proceeding from thence with the ship after the disposal of her cargo to Madeira and the East Indies, and from thence back to the United States. Before the ship's departure from Philadelphia, Butler wrote to Collet this letter-" Having given you a power of attorney for the complete management of my half of the ship Argonaut, her present cargo, and any others you may choose to put on board her, agreeably to your own judgment and will, the following observations are offered solely to assist your reflections, and lead you to procure that information which must be necessary to form a sound judgment how to act. For the employment of the Argonaut, three plans occur as probable to be *accomplished, viz.: First plan: after your arrival in France, to get a freight to the Isle of France, and go from thence to Bombay, and get a freight of cotton to Canton; from Canton to take a freight back to the coast of Coromandel or Malabar, and, in short, to keep the ship employed in the country commerce until she has gained sufficient to make a

complete investment in China for this country. Second plan: to go from France to London, and there obtain a freight for any of the Company's settlements in the East Indies, and from such settlement pursue the same plan of operations by country freight, or take a freight direct from Bengal for this country, or for Hamburgh, or other neutral ports. Third plan: to obtain a credit in London, and go out to Bombay or Bengal with a complete investment on our own accounts, to obtain a freight to China, and with that and the proceeds of the English investment to load at Canton for this country, or with the proceeds of the English investment to load at Bengal for this country directly back, or for France." On the 1st of May, 1796, Collet arrived with the ship at Brest in France, and there sold the flour which had been laden on board her in America, and afterwards proceeded to Bourdeaux in France, where he sold the remainder of the cargo; and certain other goods. being the same mentioned in the 3rd count and American property, belonging to Collet (the United States of America not being then at war with any of the belligerent powers), were there purchased and loaded on account of Collet on board the ship, which, with the cargo, on the said 1st of May, 1796, was in safety at Bourdeaux. The ship, from the time of her first sailing from America, to the time of the loss, continued American. Whilst the ship remained at Bourdeaux, Collet came from thence to London, and having procured a credit with Wilson (the plaintiff), the latter under the direction of Collet, and during his stay in London, purchased upon commission within this kingdom with the monies, or upon the credit of him (Wilson) goods of British growth and manufacture on account of Collet and Butler, the same being the goods in the 5th count mentioned, and being the property of Collet and Butler; and Wilson, under the like direction of Collet, and during his stay in London, caused the said goods to be shipped at London on the joint account and risk of Collet and Butler on board three other American ships, in which they were conveyed from London to Madeira in the said policies in the 1st and 5th counts mentioned, for the purpose of being reshipped at Madeira into the ship Argonaut, and of being carried therein, together with the goods so *shipped on board her at Bourdeaux from Madeira to the British territories in the East Indies, and of being imported into those territories and traded with there; and the value of the said last-mentioned goods still remains due from Butler and Collet to the plaintiff. The ship Argonaut, on the 1st of May, 1796, sailed

from Bourdeaux with the goods so loaded on board her there to Madeira, in order to take on board her the goods so shipped from London; and having arrived at Madeira, took on board there as well those goods as certain Portugueze wines, for the purpose of proceeding with her whole cargo to the British territories in the East Indies, and of landing and trading with the same there; the said goods, &c. not being such, the importation whereof into the said territories was or is entirely prohibited; and neither Collet nor the said ship having been licensed by the East India Company to sail or trade there. The Argonaut with her cargo having afterwards sailed from Madeira in the prosecution of her said voyage to the East Indies, in the course of such voyage, to wit, on the 2nd of August, 1796, at Symon's Bay, near the Cape of Good Hope, was with her cargo seized and detained by Sir G. K. Elphinstone, commander of a squadron of the King's ships of war, upon suspicion of being an illicit trader; by means whereof not only Collet's moiety of the ship and goods in the 3rd count mentioned, were lost to him to the amount of the sum insured by him respectively thereon, but also the goods in the 5th count mentioned, were lost to Collet and Butler, who were interested therein to the amount within alleged.

From the time of the ship's departure from Bourdeaux until and at the time of the seizure of the same, Collet was master thereof; and two British boys, whom Collet carried with him from London at the solicitation of their friends, were employed on board the ship during the voyage. Butler was a naturalborn subject of this kingdom, but was resident and domiciled in the State of Pennsylvania in America before and at the time of the declaration of the independence of the United States, and has ever since continued to be resident and domiciled there; and upon such declaration of independence, became, and from thence hitherto hath been and still is, a citizen of the said United States. Collet was also a natural-born subject of Great Britain, and long before and until July, 1784 (being after the ratification of such independence), was a seaman engaged in the navigation of British merchants' ships. In July, 1784, he went with his wife and children to settle and permanently reside in the United States of America, and then became and was received as a citizen of the same States: he has ever since been domiciled there, and has been from time to time. employed in the command and navigation of ships belonging to himself and other persons citizens of the United States. On the

WILSON

v.

MARRYAT.

[ 35 ]

WILSON

v.

MARRYAT.

*36]

[35, n.] Article 11th.

Article 12th.

16th of February, 1793, the proclamation (usually made at the beginning of every war) was made here by the King, by the advice of his Privy Council, forbidding all mariners and seafaring men, natural-born subjects of this country, entering or continuing in the service of foreign princes and states, or serving in any foreign ship or vessel, without the King's special license. Collet had not obtained any special license from his Majesty in that behalf.

On the 19th of November, 1794, a treaty of amity, commerce, and navigation was signed at London on the part of Great Britain and the United States of America, which, with an additional article thereto subjoined, was ratified and confirmed on the part of the United States at Philadelphia on the 14th of August, 1795, and by his Majesty at St. James's on the 28th of October in that year; being the same treaty mentioned and referred to in the Act of the 37 Geo. III. c. 97 (1), entitled, &c. By that treaty it was (amongst other things) agreed (here the several parts of the treaty referred to below (2) were set out; but it was understood *that other parts

(1) Repealed S. L. R. Act, 1871.

(2) "It is agreed between his Majesty and the United States of America, that there shall be a reciprocal and entirely perfect liberty of navigation and commerce between their respective people, in the manner under the limitations and on the conditions specified in the following articles."

"His Majesty consents that it shall and may be lawful, during the time hereinafter limited, for the citizens of the United States to carry to any of his Majesty's islands and ports in the West Indies from the United States, in their own vessels, not being above the burthen of seventy tons, any goods or merchandizes being of the growth, manufacture, or produce of the said States, which it is or may be lawful to carry to the said islands or ports from the said States in British vessels. And that the said American vessels shall be subject there to no other or higher tonnage, duties, or charges, than shall be payable by British vessels in the ports of the United States: and that the cargoes of the said American vessels shall be subject there to no other or higher duties or

charges than shall be payable on the like articles if imported there from the said States in British vessels. And his Majesty also consents that it shall be lawful for the American citizens to purchase, load, and carry away in their vessels to the United States from the said islands and ports all such articles, being of the growth, manufacture, or produce of the said islands, as may now by law be carried from thence to the said States in British vessels, and subject only to the same duty and charges on exportation to which British vessels and their cargoes are or shall be subject in similar circumstances. Provided always that the said American vessels do carry and land their cargoes in the United States only, it being expressly decreed and declared, that during the continuance of this article the United States will prohibit and restrain the carrying of any molasses, sugar, coffee, cocoa, or cotton, in American vessels, either from his Majesty's islands, or from the United States, to any part of the world, except the United States, reasonable sea-stores excepted. Provided also, that it shall and may be lawful, during the same period, for

of the treaty might be referred to in argument). The plaintiff at the times when he caused the said *goods to be shipped at London, and also when he caused the policies of assurance to be effected,