
    Ludlow against The Union Insurance Company.
    THIS was an action on a policy of insurance, underwritten by the defendants, on the brig Rolla, at and from New Tork to Monte Video. The vessel was warranted to be an ..American bottom, of which proof was to be required here only. The declaration averred a loss by capture.
    On the trial of the cause before Mr. Justice Yeates, at a Court of Nisi Prius, held in November, 1815, the pláintiff, who was admitted to be a citizen of the United States, to prove his property, gave in evidence the register of the Rolla, but exhibited no other document in support of her neutral character. The defence rested upon two grounds. First. That the plaintiff had not complied with his warranty of neutrality, by furnishing the vessel with such documents as were necessary to constitute her a neutral bottom. Second. That she had forfeited her neutrality by a breach of blockade.
    The last point involved a great mass of contradictory evidence, which it is not necessary fully to detail. So far as it is material to an understanding of the opinions of the Judges, it was as follows:
    A witness, who is liable to an action by the party for whom he - is called, in case that party should not recover, but who is protected from such an action by the statute of limitations* is competent.
    A warranty of neutral property amounts to an engagement, that it shall be accompanied by all the documents required by belligerents, to entitle it to protection as such. ' It is sufficient, however, for the plaintiff, in the first instance, to give general evidence of neutrality, leaving it to the defendant to shew probable cause to suspect, that the necessary papers were wanting; in which case the burden of proof will be thrown upon the plaintiff.
    Unless the judge, who tries the cause, is dissatisfied with the verdict, it must be a very clear case that would induce the Court to order a new trial upon matters of fact*
    
      Sir Home Popham, having accomplished the objects for " which he had been sent by the British government, with a naval force to the Cape of Good Hope, formed a plan for attacking the Spanish settlements in South America. In prosecution of this enterprise, an enterprise unauthorised by his government, he withdrew a considerable part of his force from the Cape, and arrived in the month of June, 1806, oS Monte Video. He immediately instituted a blockade of that place, although no notification of it was given until sometime afterwards. On the 23d of the following September, notice of the blockade was sent into Monte Video, with a request to the Spanish governor to make it known to neutral vessels. Although the blockade was intended by the British commander to commence in June, it did not appear to have been kept up with uniformity and rigour; several vessels having been permitted to pass into and out of the port. The Rolla arrived off Monte Video on the 5th September, 1806, and passed the English shipping, which was lying seven or eight miles from the town, in a fog. When the fog cleared away, she was pursued and fired upon by the boats of the. squadron, but got safely in; some Spanish gun-boats coming out to her protection, and forcing her pursuers to retire. On the 19th November the Rolla, with her return .cargo, sailed from Monte Video. On the following day she was captured by the Medusa frigate, and sent to England, where she was condemned for a breach of blockade. Sir Home Popham returned to England in the Rolla, and on his arrival, was arrested, tried, and censured for drawing off the British forces from the Cape of Good Hope, for the purpose of assailing the Spanish possessions in America. Admiral Sterling, however, by whom he was succeeded, continued Sir Home's hostile operations, and the British government adopted and recognised his acts, by sending out reinforcements, for the security and extension of the conquests he had begun.
    Whether Sir Home Popham, without authority from his government, had power to impose a blockade of Monte Video; whether, in fact, a blockade was imposed and kept tip with due uniformity and sufficient force, and if so, whether the Rolla had received due notice of its existence, were questions litigated at great length at the trial, and upon which much irreconcileable testimony was given. Among other evidence exhibited by the plaintiff, the deposition of Captain Coffin, the master of the Rolla, was offered to prove, among other things, that he had not been guilty of a breach of blockade. Jt was objected to by the defendant’s counsel, but admitted by Judges Yeates, who having previously overruled a motion for a nonsuit, made upon the ground, that the vessel did not appear to have been properly documented, charged the jury to the following effect.
    Yeates J. The defendants resist the plaintiff’s claim on the ground of an alleged breach, of warranty, that the brig Rolla was American property, which,, in itself, implies, that she was neutral property, and, of course, should be documented and conducted as such.
    If it is proved to the satisfaction of the jury, that the plaintiff has failed in either of these particulars, he must fail in this suit.
    The question has been elaborately argued before the Court, that the plaintiff was bound to shew to this jury, that the Rolla was duly documented on the voyage. I expressed my opinion^ on the motion for a nonsuit, that I did not feel myself authorised to award it under the circumstances of the case, which might justify the jury in drawing conclusions as to the proper documents being on board, when she sailed from New York, which were afterwards deposited in the Court of Admiralty in London, over which the plaintiff had no controul. It had much weight with me, that in the many t-rials we have had and read on breaches of neutrality in insurance cases, the want of the proper documents had always been shewn on the part of the underwriters. I would not be misunderstood. If the jury are satisfied, that such papers were not on board as were necessary by the law of nations, or by particular treaties with the belligerent powers, the plaintiff has no right to a verdict. It is a fair presumption, that the insured will carry papers necessary for their own protection. Presumptions only stand until the contrary be proved. She could not have cleared out at the custom house without the proper documents. It is of no moment, that the want of these papers did not conduce to the loss; the assured must comply with his warranty, literally and fully. Whether the register does not shew she was American property, and supersede the necessity of a passport; that a clearance could only be obtained from the custom house upon the outward manifest of the cargo; the port of destination and the role d1 equipage being made known, are mattei-s which may be safely trusted to a jury of merchants, who are to judge dispassionately on their oaths.
    If the first question is determined in favour of the plaintiff, the next inquiry will be, has the brig been conducted as neutral property should be ? This is, most chiefly, a question of fact, but the law should be well understood before the fact can be well ascertained.
    The right of imposing blockades is an incident of war. It grows out of the state of hostilities between contending nations, and is founded on the principle, that neutrals shall not be permitted to assist an enemy in such places as are invested with actual force. The rights consequent on a blockade are truly said to be a hard measure in their operation against neutrals, and ought not to be extended by construction. The class of men whose duties lead them to enforce blockades, too frequently pay little regard to individual rights, and the United States, in particular, have often smarted under their rapacity. We must, however, take the world as we find it; and courts of justice must be governed by the settled law of nations as adopted by the civilised nations of Europe; or ‘trade in general must run into confusion.
    Three things are necessary to constitute a valid blockade. 1st. There must be a competent authority to impose it. 2dly. It must be imposed in fact. 3dly. It must be maintained in such a manner as to lay upon the parties an obligation of attending to it with a sufficient blockading force. On the first ingredient I concur with Sir William Scott, that there is a plain distinction between a blockade on stations in Europe, and distant parts of the world, and that in such distant parts a commander must be held to carry with him a sufficient authority to act against the enemy. However irregularly Commodore Sir Home Popham may have acted towards his own government, in withdrawing his whole naval force from the Cape oj Good Hope, without orders, the individual subjects or citizens of other countries cannot dispute the validity of the blockade on that account. If the testimony is credited, Admiral Stirling, when he superseded Popham, sanctioned on the spot what he had done in this particular; and so far from the British government disavowing the blockade, it is incontestibly shewn, that the Rolla was condemned as a prize, in the Court of Admiralty in London, for a hreach of blockade.
    A blockade, in order to,affect neutrals, must be communicated in a credible manner: this is frequently done by a communication to the minister of the neutral powers, of which their citizens or subjects are bound to take notice, after the lapse of a reasonable time. But a blockade may commence by an actual force on the spot, preventing vessels from going into or coming out of the port blockaded. The object of the blockade is to prevent neutrals from aiding the enemy, by carrying on trade with them. When the commerce is thus forcibly suspended, the warlike measure becomes notorious. It is seen and sensibly felt, and particularly by those within the port blockaded. What can personal individual notice do more?
    If it appears that ships not privileged by the law of nations have been allowed to enter or come out of the blockaded port, other parties may be justified in presuming, that the blockade has heen taken off. But I think it incumbent on the party who asserts the raising of the blockade, to shew such cases with all their attendant circumstances. For the privilege of entering extends to neutral vessels under licenses from the government of the blockading power, or where their cargoes have been purchased and really delivered either on board or in lighters, previously to notice of the blockade; or where they came out in ballast; or where they are in reál distress, for the mere purpose of relief. For these are the undoubted rights of neutrals.
    This is a short and imperfect summary of the general rules as to blockades. But the jury will be called upon to decide facts upon conflicting testimony, and therefore I will mention the legal principles in weighing testimony. Where Witnesses are of equal character, and swear differently, the greater number should preponderate: their credibility greatly depends on their indifference to the matter in dispute: one affirmative witness countervails many in the negative, for one witness may see or hear what another has not seen or heard, and both may have sworn truly. The probability or improbability of a story told by a witness will always have a great effect on intelligent minds in the pursuit of truth: the jury will endeavour to reconcile the testimony when it can be done. When it cannot be so done, they will judge for themselves, on a cautious, dispassionate consideration of all the circumstances., It is their peculiar province to try the credit of witnesses.
    It is not my intention, if my state of health would even admit of it, to go into the minutia of the evidence. But I hold it my bounden duty, to give the jury what assistance I can, in order to enable them to form a correct verdict. I have no other wish than, that equal impartial justice should be done.
    The jury will determine on the probability of Monte Video being blockaded, on considering that the British squadron had the command of the river Plata, and the different attempts made by their forces by land against the Spanish territory. They will consider, that six witnesses, Wells, Wiles, Waldo, Hickson, Paterkin, and Webb, unbiassed as far as we know, have sworn affirmatively to the blockade, and that, according to Webb, Captain Coffin told him he knew of it, but made a run of it, and escaped the squadron in the night. They will contrast their testimony with that of Coffin and Waddel, who come forward to justify their own conduct, and advance the interests of their employers, and determine to whom superior credit is due, taking also into view the testimony of German and Banbury.
    
    They will carefully examine the testimony of Coffin, whether he does not deny the blockade, because he had no personal notice of it, and other ships were allowed to come in and go out. Why was.he chased, and escapfed by means of the Spanish gun-boats, if no blockade ? Why does he speak of the blockade not being renewed after the British took Maldonado, if no blockade ever was imposed ?
    The jury will ask themselves, if Captain Bunbury has not substituted opinion for fact, in turning over the leaves of Vat-tel and Beawe's Lex Mercatoria, thereby inducing him to believe himself an adept in the law of nations ! But why was his vessel, the Mary, detained in port four or five months, if she could safely have come out of port ? Bunbury also' took the ground that no personal notice was given to him.
    If the jury should be satisfied, in a calm and attentive review of all the circumstances, that misconduct prejudicial to the insurers is not fairly imputable to Captain Coffin, and that, giving the fullest credit to his whole relation, hiá duties as a master did not imperiously call on him to make further inquiry as to the rumour of the supposed blockade, their task is over, and they ought to find for the plaintiff without hesitatton. But if their minds should be led to a different result, they will then inquire, whether such conduct has not been pursued by the commander of the British squadron as neutrals might avail themselves of, and conclude, that the blockade was raised. I have already detailed the exceptions from the general obligations of blockades in favour of neutrals, by the law or comity of nations, and have said, that the party who defends himself on the ground of the blockade being-taken off, ought to shew in evidence the cases on' which he relies as his justification. They lie within the knowledge of the captain and supercargo of the Rolla, who are the plaintiff’s agents.
    The jury, therefore, will be led to inquire, whether the vessels which were permitted to come out of port fall within the exceptions which have been stated. They will determine, on the whole proofs, whether all the vessels which have thus come out have not been stopped by the blockading squadron, until their particular circumstances had been fully examined into. The verdict should correspond with the fact as ascertained on these points. I hold the doctrine of blockade extends to vessels coming out of port; I can have no conception, that such evils are inflicted on neutrals merely to distress them, but that the hardships they are subjected to, necessarily spring from a desire to affect the trade and finances óf a belligerent enemy. If my charge in any material part is incorrect in point of maritime law, it will be subject to the correction of all the Judges of this Court. The want of rigour in the blockade seems to me the strongest ground on which the piaintiff’s claim must ultimately rest.
    I have thus endeavoured to bring the prominent features of this case before the jury, to enable them to form a correct decision. I have not concealed the inclination of my own mind on the whole evidence; but it rests with the jury to say for themselves, what effect the proofs have on their consciences and judgments. They will judge with impartiality, and' decide with firmness, remembering, that the fair and equal ádministration of the law is the best security for every individual and society in general.
    As to interest, if the jury shall think fit to find for the plaintiff, it seems that the loss is stipulated to be paid in thirty days after the exhibition of the preliminary proofs, unless there are particular circumstances, which exempt the case.from the operation of the general rule. The jury will judge, whether such circumstances exist in this case.
    The jury found for the plaintiff, and the cause now came before the Court, on d motion by the defendants for a new trial, for which three reasons were assigned. First. That the deposition of Captain Coffin was improperly admitted in evidence. Second. That the plaintiff had not complied with his warranty of neutrality, by furnishing the Rolla with the necessary neutral documents. Third. That the verdict was against evidence, against law, and against the charge of the Court.
    The argument, which was conducted by Ewing, for the plaintiff, and by Binney and Rawle, for the defendants, took a very wide range, embracing a view of all the evidence given at the trial. It is unnecessary here to pursue the topics urged by the counsel, further than they are connected with the points decided.
    
      Arguments in support of the motion for a new trial.
    
    
      1. Nothing can be more clear than that the Captain had such an interest, as disqualified him from becoming a witness. He had received no release from his owners, to whom he was responsible for his conduct. The effect of his testimony, therefore, was to justify himself, and to protect himself against a future suit. The question was, whether or not he had broken the blockade of Monte Video; a question, in the determination of which he had a deep and immediate interest, because, if the plaintiff recovered against the underwriters, he would be no longer liable to an action by the owners. The verdict in this cause would be evidence for him in such a suit. On the other hand, the underwriters could maintain no action against the Captain, because the contract of insurance created no privity between them. The only authority to be found in support of such a position, is an opinion incidentally expressed by Lord Kenyon, in Bird v. Thompson,
      
       which, notwithstanding the highly respectable name by which it is sanctioned, is opposed by every principle of the law of contracts. From the abandonment the insurers derive no right of action against the master. The property, which vested in the defendants by the abandonment, did not vest until after the loss. The breach of blockade and the loss are distinct things. The rights of the insurers relate back to the loss ; not to the breach of blockade, which caused the loss. The Captain, therefore, is not answerable to them for acts which took place before their rights accrued.
    In Symonds v. De La Cour, (cited in 2 Condy's Marsh. 705.) it was decided, that the Captain was not a competent witness to prove that a deviation was justified by necessity. The case of Martin v. Henrickson, strongly resembles this, and is in point against the admission of such testimony. It was an action brought against the defendant for mismanaging his ship, so that it ran over the plaintiff’s barge. The pilot was offered as a witness for the defendant, but rejected by Chief Justice Holt, because he was answerable to the owner in damages for a loss, which arose from his mismanagement. Thus it is apparent, that the Captain was an incompetent witness, because he had a direct interest in the event of the suit.
    2. The question is not, whether under the warranty, the Rolla ought to have been furnished with all the papers necessary to prove her a neutral bottom, and to entitle her to protection-as such, but whether she was so furnished, and whether it was not incumbent upon the plaintiff to prove a compliance with his warranty. It is said by Marshall, (2 Condy's Marsh. 713.) in speaking of the evidence which a plaintiff must give to enable him to recover, that the truth of affirmative, and the performance of executory warranties must be proved. It has been repeatedly decided that it is not enough that the property insured belongs to neutral owners; it is also necessary, that the vessel shall appear to have been navigated according to the law of nations, and to have been provided with every document required by the law of nations, and treaties with particular powers, to entitle her to protection as a neutral. Thus in Rich v. Parker,
      
       Lord Kenyon decided, that the insured could not recover on a policy which contained a warranty that the ship and goods were American property, because, when the vessel sailed she had not the sea-letter or passport required by the treaty between the United States and France, although at the time of capture this document was on board. And the cases of Baring v. Clagget, and Baring v. Christie,
      
       went upon the same grounds. See also Blagge v. The New York Insurance Company,
      
       Calbraith v. Gracie,
      
       Elting v. Scott,
      
       Griffith v. The Insurance Company of North America.
      
    
    The law being thus settled, that the vessel must be furnished with all the documents necessary to prove her a neutral bottom, the next inquiry is, what papers are called for by the law of nations or by treaty, and in which of them was the Rolla deficient ? The treaty between the United States and Holland, (art. 25. 1 Graydon, Appx. 8.) requires, in case one of the contracting parties happens to be at war, the vessels of the other to be provided with a sea-letter or passport, expressing the name, property, and burthen of the vessel, together with the name and place of abode of the master. It also requires a manifest, or in place of it a certificate of a certain description, in order to shew, whether there are any contraband goods on board, and whether or not they are destined to an enemy’s country. The treaty between the United States and Spain, (art. 27. 1 Graydon, Appx. 55.) requires papers of the same character. Our treaty with Prussia, (art. 14. 1 Graydon, Appx. 69.) requires a passport, a charter party, or bills of lading for the cargo, and a list of the ship’s company ; and our treaty with France, (art. 4. 17. 1 Graydon, Appx. 74. 78.) a passport, in the form therein prescribed, and a certificate, containing the particulars of the cargo, the name of the place from which the vessel sailed, and of the place to which she is bound. The papers rendered necessary to a neutral vessel, by the law of nations, and by treaty with foreign powers, may be summed up to be ; a sea-letter or passport, a manifest, a charter party, or bills of lading, a clearance and a role d equipage. The Rolla exhibited no other proof of her American character than her register. It is plain, therefore, that the insured has not shewn a compliance with his warranty, and ought not to recover.
    The argument on the last point, viz. whether the Rolla had broken .the blockade of Monte Video, was entered into so much at length, and embraced so much conflicting testimony, that even a slight sketch of it would occupy too much room to justify its admission. It is deemed sufficient, therefore, merely to mention,the authorities which were cited, and to refer to the charge and opinion of the judge who tried the cause. 6 Rob. Rep. 365. The Rolla. 1 Rob. Rep. 69. The Mercurius. Id. 78. The Betsy. 2 Rob. Rep. 96. The Juno. Id. 136. The Hoffnung. 1 Edwards, 250. The Courier. Id. 252. The Charlotta. 1 Rob. Rep. 73. The Frederick. Id. 126. 8. Vrow Judith. 2 Rob. Rep. 93. The Neptunus. Id. note. The Adelaide. 7 Johns. 54.
    
      Arguments against the motion.
    
    1. The admission of Captain Coffin’s deposition ought not to affect the verdict. His protest, which was read at the trial, is, by the law of Pennsylvania, good evidence ; and if an ex parte declaration, such as a protest, is admitted, it would be most extraordinary indeed, to exclude a deposition of the same individual, taken under all the solemnities of the law, and upon a full cross-examination. But there is another reason for receiving the testimony of the Captain — the necessity of the case. The same rule that would exclude him, would exclude the whole crew, and then there would be no possibility of pr-oving such facts as are essential to the plaintiff’s claim. There are many cases in which the rule, by which interested witnesses are rejected, is broken through. An interested party will be admitted for the sake of trade, and the common usage of business; as, to take a single example, a porter to prove the delivery of goods. So too where no other evidence can be reasonably expected; as in the case of interested servants, who are often received, as witnesses for their masters. Several instances of this sort are to be found in Buller’s N. P. 289, 290. 1 Taunt. 14.
    But the interest of Captain- Coffin is neutralised by an equal interest the other way; because, if the plaintiff recovers, and the Captain has been guilty of misconduct, he is responsible to the underwriters. This was expressly said by Lord Kenyon, in Bird v. Thompson,
      
       where he rejected the master as a witness in an action for a loss by barratry, solely upon the ground, that if the plaintiff recovered, he would be answerable to the underwriters. There is, however, a circumstance, which will at once remove every objection to the deposition.' All recourse to the Captain is barred by the statute of limitations. The acts by which it is said he ha® rendered himself responsible to his ownei-s,took place in the year 1806. He therefore had, when his evidence was given, a good and legal defence to any action which might be brought against him for his supposed misconduct. The subtle and narrow grounds upon which the law formerly went, with respect to the competency of witnesses, has of late years been considerably enlarged, and a much more liberal rule introduced. It is not enough now, that the witness has an interest in the question, or that he may possibly become liable to an action in a certain event. It is necessary, in order to exclude him, that he should appear to have a direct interest in the event of the suit in which he is called to give testimony, or that the verdict, which is to be influenced by his evidence, should be evidence for or against him. The alleged interest of Captain Coffin is not of this description. He is not immediately interested in the event of this suit, but may be exposed to an action by the present plaintiff, if he should not now recover; and this action he has it in his power completely to defeat by pleading the act of limitations. It would, therefore, violate the rules of evidence, as now understood at least, to reject his deposition. Peake, 144. 1 Hen. & Mun. 167. 2 Caines, 77.
    
    
      2. That a vessel warranted neutral, should be provided with proper neutral documents, cannot be denied ; but to call upon the plaintiff in the first instance, to shew that they were on board, in order to entitle himself to recover, is unprecedented, and in this case particularly hard; because, had this requisition been anticipated, it might easily have been complied with. The established practice in England, is to give general evidence of neutrality, and leave it to the defendant to shew the reverse. 2 Condy's Marsh. 714. This was done;, The register of the Rolla was laid before the jury, who ought to have presumed, unless the contrary had been shewn, and who did presume, that she was furnished with every proper document. This presumption they were particularly called upon to make, as the vessel was captured, and the papers carried beyond the controul of the plaintiff. Besides, what the law requires to be done is to be supposed to have been complied with.
    Mr. Ewing then went into an argument relative to the ah íeged breach of blockade, dwelt upon the facts, and in the course of it cited the following authorities. 6 Rob. Rep. 365. The Rolla. 3 Rob. Rep. 127, 8, 9. 2 Rob. Rep. 94, 5. 2 Johns. Cas. 469. 3 Caines, 235, 6. 1 Rob. Rep. 79. 3 Rob. Rep. 124. 232. 310. 1 Johns. 253. 2 Caines, 11, 12. 1 Rob. Rep. 148. 1 Johns. 265. Edwards, 312. 3 Caines, 236, 7. 240.
    To shew the principles by which Courts are governed in awarding new trials, he cited 9 Johns. 311. 1 Bl. Rep. 1. 418. 6 Bacon, 663, 4. 3 Binn. 317. 2 Binn. 495. 1 Taunt. 14. 1 Caines, 24. 162. 3 Johns. 170. 271. 2 Cir. 1142. 1 Wils. 22. 3 Wils. 45. Brack. Law Mis. 549. 552. 3 Binn. 400.
    
      Reply. 1. The admission of the Captain’s protest, affords no reason why his deposition should be received. The protest is subject to many restrictions. It must be made at the . first port and in the shortest possible time, The deposition on the other hand, may be made at any period, after full deliberation and a knowledge of the consequences which may result from it, and may differ, as in fact it does in this instance, from the protest. The argument derived from necessity, might have some force if the necessity were shewn to exist; none exists, however, in the present case, because there is no objection to the evidence of the mate and crew. With respect to usage, there is in Pennsylvania none, which in point of law, authorises the admission of the Captain’s deposition ; and if such an usage has crept in improperly, malus usus abolendus est. Nor is the argument founded upon the statute of limitations a sound one, because the statute does ■not extinguish the cause of action ; it merely gives a defence which the party may avail himself of or not as he pleases.
    2. With respect to the papers. Presumptions should have some grounds to stand upon. The capture of the vessel is no such ground ; it furnishes no presumption that the proper documents were on board and lost, because there are at home copies of the sea-letter, bills of lading, &c. which might easily have been procured, and they under the circumstances of the case would have been sufficient. No law of the United States requires a vessel to be provided with all the papers which are necessary to a neutral. This is a suffi-cient answer to the argument, that what, the law requires t<5 be done must be presumed to have been done. The only papers required by the laws of the United States are, a clearance, shipping articles, and a Mediterranean pass ; but these afford no proof of the existence of a charter party and certificate of origin. The rule laid down in 2 Marshall, 714, is susceptible of a different construction from that given to it by the opposite counsel. The general evidence of neutrality, without doubt, includes all the documents essential to the neutral character of the vessel.
    
      
      
         1 Esp. Rep. 339.
    
    
      
      
         2 Ld. Ray. 1007.
    
    
      
      
         1 Condy's Marsh. 409.
    
    
      
      
         1 Condy’s Marsh. 428.
    
    
      
      
        Id. 430.
    
    
      
      
        Id. 406. note.
      
    
    
      
      
         1 Condy’s Marsh. 407. note.
      
    
    
      
       2 Johns. 157.
      
    
    
      
       5 Binn. 465.
    
    
      
      
         1 Esp. Rep. 339.
    
   Tilghman C. J.

The plaintiff obtained a verdict in this case, and the defendants have moved for a new trial, because the verdict, as they allege, was against law and against the evidence. The defendants make two points. 1. That the loss happened by a breach of the blockade of Monte Video. 2d, That the plaintiff’s warranty of American property was broken. They also except to the opinion of the Judge before whom the cause was tried, in admitting the Captain of the Rolla (the plaintiff’s ship) as a witness for the plaintiff, to prove that Monte Video was not blockaded. The Captain had no release from the plaintiff, and his testimony was objected to, on the ground of interest. He will be responsible to the plaintiff,, if through his misconduct the plaintiff fails to recover in this action. If the matter rested simply on that point, I do not see how the objection could be answered. But the witness may have been interested formerly, though not so at the time of trial. If he is answerable to the plaintiff, it must be for misconduct, which happened in the year 1806, so that when he was offered as a witness he was protected by the act of limitation. In answer to this, it has been said, that the act of limitation is not an extinguishment of the plaintiff’s cause of action. True, it is not, but it puts it in tbe defendant’s power to defeat it, and that is sufficient to take off his interest. If a witness is interested, and the party who produces him, offers a release, which the witness refuses to accept, his interest is no longer an objection, because it is owing to himself that he remains interested. On the same principle he ought not to be rendered incompetent by liability to an action, which he has the means of defeating; there is no reason to suppose, that his testimony will be influenced by the fear of such an action. I am of opinion, therefore, that he was a competent witness.

The plaintiff warranted the property to be American, which no doubt, amounts to an engagement that it shall be accompanied by all those documents which neutrals may be called upon, by the belligerent powers, to produce. Those documents were not produced on the trial, but the plaintiff proved, that the property belonged to an American citizen. In determining what proof it is incumbent on the plaintiff to make, considerable regard should be had to the usual practice in such cases. In every insurance there is an implied warranty, that the vessel is sea-worthy. Yet the plaintiff is not put to the proof of sea-worthiness, in the first instance. Sea-worthiness is presumed, unless something occurs in the voyage which renders it doubtful, and then the plaintiff must prove it. It is said by Marshall, in his Treatise on Insurance, that in case of a warranty, that the thing insured is neutral property, it is usual at the trial, to give general evidence of the truth of that warranty and leave it to the defendant to falsify it, or prove a breach or forfeiture of it. There is the more reason for this, as the ship’s papers are taken out of the possession of the assured by capture. And in case of condemnation, it seldom happens that notice is not taken in the Court of Admiralty of any defect of documents. This would be sufficient for the defendant’s purpose. Any thing which shews probable cause to suspect, that the necessary papers were wanting, will throw the burden of proof on the plaintiff. But without something of that kind, it may be left to the jury to presume, that all was right. I am more inclined to be satisfied with this practice, because a warranty that property is American, in its plain import amounts to no more than that it belongs to an American citizen, and it was rather a forced construction, by which it was implied, that it should be accompanied with neutral documents. The insurers are placed in a very advantageous situation by this construction, and therefore may be content, if it is expected, that they should shew^some probable cause for -suspecting that the proper documents were wanting. This was the footing on which the Judge left it with the jury, and I think he was right.

On the breach of blockade the cause has been argued at very great length. Whether Sir Home Topham, who commanded the British squadron before Monte Video, ever dedared a blockade, and if he did, whether. he maintained it with such perseverance as he ought to have done, were questions warmly contested, and on which much evidence was given, and some of it contradictory. The Judge on the trial declared the inclination of his mind to be in favour of the defendants on all matters of facts, except the maintaining of the blockade, and on that, he seemed undecided. In reporting the case, he has expressed no dissatisfaction with the verdict. Under these circumstances I should feel great difficulty in setting it aside. The weight of evidence appears to me rather to be in favour of the defendants, but I will not say, that there is that clear and decisive preponderance, which is necessary, to entitle the party to a new trial. Something depends on the character of the witnesses, for the testimony cannot be reconciled, and of their characters I know nothing. I have often said, that unless the Judge who tried the cause, declares himself dissatisfied, it must be a very clear case which could induce me to send matters of fact to a second trial. This is not such a case, and, therefore, I am of opinion, that the verdict should stand.

Yeates J.

I thought-on the trial, and still think, that the master of the Rolla, was a competent witness. He was not bnmediately and directly interested in the event of the cause; and although he was interested in the question, whether he had been guilty,,pf a breach of blockade, the possibility of a future suit being brought against him, did not furnish a legal ground of exclusion. Such has been the general bent of decisions, according to the assertion of. Kent, Justice, in Baker v. Arnold, 1 Caines, 276, and many of our books. The settled practice of this Court, which has been affirmed on solemn argument, to receive in evidence the protest of the master, in a suit against underwriters, furnished t.o my mind an additional reason for admitting his deposition, taken under a rule of Court. If an ex parte protest of a Captain is admissible under a practice peculiar to ourselves, I can see no rea-, son, why his deposition, taken on a full cross-examination, should be refused. It may also be assimilated to hearsay, which may be received either to corroborate or invalidate what he had sworn previously. The ground of objection is, that the master is liable to the ship owners for a breach of blockade, on account of the privity subsisting between them, but the statute of limitations has interposed an insuperable bar to sqch suit, in the present instance. The sentence of condemnation passed against the Rolla, on the 3d June,1807, and the preliminary proofs, were exhibited by the plaintiff’s agent to the defendants on the 17th day of August, 1807. More than eight years therefore have elapsed, since knowledge of the supposed misconduct can be traced to the plaintiff. If, however, the Captain should still be thought responsible to his owners, in a future suit, the impediment to his testimony is removed if he is equally responsible to the underwriters. It was the decided opinion of Lord Kenyon, in Bird v. Thompson, (1 Espin. 339.) that the master of a vessel insured, is liable to the insurers for misconduct, ex delicto. It would be strange indeed, that in a system of commercial law, bottomed on the purest good faith, the Captain of a ship should be guilty of a flagrant breach of the law of nations, pregnant with the most injurious consequences to insurers, who must necessarily confide in his prudence, and yet be dispunishable therefor, at the suit of the party injured !

In the case of the Lady Ann, (1 Edwards’ Admiralty Cases, 235.) where a mariner had his election to proceed for his wages against the owners, the master, or the ship, and had instituted proceedings against the owners, Sir William Scott held, that the master had no immediate. interest in the suit, and was, therefore, a competent witness, by all the rules he was acquainted with. I will only add in his language, as applicable to this case, that I told the jury, “it was necessa“ry to watch Captain Coffin’s testimony with jealousy, as “his conduct constituted a material part of the adverse “ case.”

After the plaintiff had closed his testimony, the defendant’s counsel moved for a nonsuit, because it had not been shewn, that there had been a sea-letter, a certificate of the cargo, and from what port the brig had sailed, a charter par,ty, or bills of lading, and a role d’equipage, on board at the time of the capture; and it was insisted, that these were the proper documents to evince her being a neutral vessel, according to treaties made with foreign nations. A copy of the register from the custom house at New Tork, certifying, that the original had been detained in the High Court of Admiralty in London, where she had been condemned as prize, had. been previously given in evidence. I refused the motion for a nonsuit, conceiving it to be a surprise on the plaintiff to call for those papers. I fully admitted the propriety of the rule, that the vessel should have regular documents on board, made necessary either by the law of nations or by treaties with foreign countries, to shew her neutral character, and that unless this was shewn to the satisfaction of the jury, the plaintiff was not entitled to recover. If I had been asked, on the part of the plaintiff, to allow time to send to the custom house at New York for copies of these documents, I should have deemed it my duty to have promptly granted it, for the sake of doing complete justice. But the plaintiff’s counsel were willing to run the risk of the jury’s deciding on the fact, that these documents must have been on board, from the laws of the United States, and the usages of the custom houses.

The brig had a register and a regular clearance at New York, which she could not have obtained without an exhibition of the papers called for. It would be monstrous to suppose, for a single moment, that the Captain would leave port, without the necessary muniments to secure his safety on the ocean. I thought these presumptions fair, reasonable, and natural. The original documents, it appeared, (such as they were) had been deposited in the English High Court of Admiralty. According to the course of the English practice in such cases, it is usual to give, general evidence of neutrality, and leave it to the insurers to dispute and falsify it. 2 Marsh. 714. It weighed greatly with me, that although we have had many trials in this Court upon express warranties of neutrality by the insured, it had never been required, that the documents now demanded should be produced. The want of them in all the cases I had met with, had either incidentally appeared in the course of the evidence, or had been shewn on the part of the insurers. Here the American character had been impressed on the brig by her register. A recurrence has been had, since the trial, to the custom house at New York, and the result has evinced, that the neutral documents asked for before me, could have been produced without difficulty on the trial, if it could reasonably be supposed, that such a deviation from accustomed practice could have been expected. It has been offered to spread these papers on our table.

I do not find, that the charge I delivered to the jury has been questioned in point of law. I gave them a brief summary of what I deemed to be the law of civilised nations, as to blockades, and the consequent rights of the blockading party and of neutrals thereon. I did not conceal from the jurors the impressions which the evidence had made on my mind, but told them they were the exclusive judges of the credibility of the witnesses. I attempted to bring the prominent features of the case before them, and informed them of the legal rules to be observed in weighing evidence. I stated to them, that it rested with them to say, amidst the conflicting testimony, what effect the proofs had on their consciences and judgments ; and that it was their duty to judge with impartiality and decide with firmness, remembering, that the fair and equal administration of the law is the best security for every individuabas well as of society in general. The jury have found for the plaintiff, against the inclination of my mind, on an attentive consideration of the whole evidence, but I do not think myself at liberty to disturb their verdict on that account, where there has been contradictory-evidence. In the exercise of legal discretion, the Court will not pass the limits which they have assigned to themselves in former instances of the like nature. They refused a new-trial on a verdict given in the Circuit Court, at Lancaster, for the defendant, in April, 1805, between George Moore, jun. and Abraham Witmer, and in a late case between Griffith and. Willing fe? Francis, on a verdict found for the plaintiff. In both these suits strong circumstances existed against the finding of the jurors. Many decisions of the same kind are to be found in the English books.

Upon the whole matter, I am of opinion, that thé rule to shew cause why a new trial should not be granted, be discharged, and judgment entered on the verdict for the plaintiff.

Srackenridge J. concurred.

New trial refused. 
      
       2 Condy's Marsh. 744.
     