Page:United States Reports, Volume 2.djvu/281

 -—--·-—-· ·—-—····* " "1 Soracue Coun or Pmyjlwnb. ay; {imply this :—If two nations are at war, a neutral power {hall rygy. 5 not do any a&, in favor of the commercial, or military, opera- VYV tions of one of them; or, in other words, it {hall not, by treaty, _ afford a fuccour, or grant a privilege, which was not ltipulated for, previoully to the commencement of hoflilities. '1'he fccond ground of defence, is founded on the `capture and condemnation of the vclfel at Bermuda. lt is urged, that the libel ltates the property to be Frencb; and that the decree being general, aflirms that allegation. But the libel conlills of five charges; and if the charge of I·i·.»n¢b property is allirmed, the other four, which ltand precifely on the fame footing, mult be arbitrarily eitcluded; fmce, under different modifications, they alledge the property to he American. It is iuxpraaflicable, there- fore, to Ex the precife caufe of condemnation by an infpeélion of the record itfelf ; but, we are clearly of opinion, that, under fnch circumftances, evidence may be received to ellablifh the American ownerfhip, in conformity to the warranty. As, then, the proof leaves no doubt on the quellion of oxvnerihip, we cannot prefume that the judge of a foreign Court has perjured himfelf, by declaring that property to be Frerub, which we know to be American; and, of courfe, we mult alfume the polition, that his decree proceeded upon the other allegations of the libel. T hofe other allegations do not furnilh any caufe for cancellin the policies in the prefent cafe, either in relation to the exprtg warranty, or to the matter charged. An Amnican citizcn may .` lawfully, at any time, carry flour, and other articles of provilion, or difpatches, for a I·`m:cb minilter, from an American, to a" " Frrrtcb, port. The third ground of defence {lates, that there was a conceal- ment of fome material facts, in regard to the rifque, which were known to the plaintiff at the time of the dcfendant’s undertaking the infurance ;—fuch as the outward tranfportation of a cargo of flour for 1`lIr. E;m·l·et, and the homcward accommodation of Frm.-/3 foldiers, wizh their baggage. If this llatcment is correct in point of evidence, the law ariling from it is certainly in favor of the defendant. But the weight of the tcilimony does not feem to fupport it. 'l`he:·c can be no imputation of concealment, where each party had an equal opportunity of acquiring a know- ledge of the fact; and there is ltrong rcafon to believe, if not direé evidence to lhew, that the plaimiif gave the defendant that opportunity, by placing in his hands the captain’s letter, _ reciting all the circumllances. lf the defendant then refufed, or neglected, to read the letter, it cannot now be afligned as a caufe for viiiiting the policies. Belides, if all the circumltan- ces had been petfeétly undctllood, there was nothing which any lawyer would have pronounced to be illicit in the trade. The cargo of flour was at the rifque of the plaintiff, till it was Mm 2 actually

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