poole; which vessel I have agreed to ransom for the sum of 1300l. sterling, to be paid to Mr. Hauffoullier, fitter of the said privateer at Dunkirk; in consideration of which I have set the said vessel at liberty to go to the port of Liverpoole, where she is to be arrived in the time and space of three months, after the expiration of which this present agreement shall not clear her from being taken by any other privateers. For security of which ransom, I have received for hostage on board of the said ship, John Butler, cousin to the captain of the said vessel, desiring all friends and allies to let safely and freely proceed the said vessel to the port of Liverpoole, without any let or molestation, during the said time or course of her voyage; and I,Thomas Finchett, owner of the said ship and merchandizes, have voluntarily submitted to the payment of the said ransom, viz. 13907. sterling; for surety whereof I have delivered up the said John Butler of Liverpoole for hostage, promising not to go against the conditions of this present contract, whereof each of us have a copy by us, which we have signed, with the said hostage. Signed on board the said ship, the 6th of June in the year 1780. And it is further expressly covenanted and agreed, that I the said Thomas Finchett do bind and oblige myself, and engage my vessel and cargo, to pay or cause to be paid to the owners of the said privateer, the full amount of the said ransom, should the said hostage come to die, or to desert, or that the said privateer should perish, or be taken with the hostage on board, without which condition the captain of the said privateer would not have consented to the above ransom, which, in all cases whatsoever, shall be well and truly paid.—(Signed) Robert Cornu. Thomas Finchett. John Butler."

Lord MANSFIELD:-"It is sound policy, as well as good morality, to keep faith with an enemy in time of war. This is a contract which arises out of a state of hostility, and is to be governed by the law of nations, and the eternal rules of justice. The additional clause is particularly adapted to this case. There is no pretext to impeach it, on the ground of fraud or extortion. The bill was registered before the French ship sailed, with this clause in it. Nor does any inference arise, from its insertion, that the general law was understood to be otherwise; for it is, also, stipulated, that the death of the hostage shall not vacate the contract, which stipulation the parties must be presumed to have known to be unnecessary, because the decision in Ricord v. Bettenham was notorious over all Europe. Learned lawyers were written to on that occasion, both in France and Holland, and Mr. Justice BLACKSTONE Shewed me several letters he had received from abroad, on the subject. It is said, that, by the law of nations, the recapture puts an end to the ransom bill; and the argument is, that the court of Admiralty decrees salvage for retaking the ransom bill.

"But what are the cases brought to prove this position? None of them were litigated but the last, and, there, no ransom bill was forthcoming. Upon what was salvage given in that case? They seem to have mistaken the nature of salvage. They seem to consider it as a debt which may be exacted. But no man can be compelled to pay salvage, unless he chooses to have the property back. They

have confounded distinct subjects. What is the eighth part of a ransom bill? Can the eighth part of an hostage be claimed as salvage? Could the recaptor make use of the ransom bill?

"Could he bring an action on it in the foreign captain's name? When the owner gets possession of the ransom bill, it may be a different consideration. But the present case is clear on two grounds. 1. The special clause is decisive; and, 2. Independent of that clause, there never has been any capture of the ransom bill.

"The authority from Grotius is very strong on this last ground." WILLES, and ASHHURST, Justices, "of the same opinion."

BULLER, Justice, " of the same opinion. The last ground goes all the length; for the bill was never taken.

"The Postea to be delivered to the plaintiff." 1

THE "CHARMING NANCY."

OPINION OF G. HAY, 1761.

(Marsden's Admiralty Cases, 398.)

Who may sue on a ransom bill?

The ship Charming Nancy (whereof James Fanneson now is or lately was master) being taken as prize by the French, was with her cargo ransomed by the master for the sum of £ ; and Francis Burt and one of the crew, whose name is unknown, consented to go as hostages for the payment of the said ransom; in consequence whereof the said ship and cargo were released. The ship afterwards arrived at her destined port, and has there unlivered part of her cargo, but the said ransom has not been paid, and the said hostages still remain prisoners. A suit is intended to be commenced in the Court of Admiralty by the relations of Burt to compel the payment of the said ransom, and thereby procure the release of the hostage, and it is uncertain whether the ship, and that part of the cargo which remains unlivered may be sufficient to answer the said ransom.

1 The case of Ricord v. Bettenham, 3 Burrow, 1734 (1762), referred to by Lord Mansfield, was that of a British ship captured and ransomed by a French captor, a hostage-Joseph Bell-being taken. The hostage died in prison; and the present action was subsequently brought on the ransom bill by the captor.

It was objected that, the plaintiff being an alien enemy at the time of the contract, the ransom bill was void, the hostage alone being entitled to bring an action. But the court overruled these objections and gave judgment for the plaintiff.

Query.-"Have not Burt's relations a right to bring an action. against the master, for the performance of whose contract the hostages became bound, as well [as] against the ship and goods, so that they may, if necessary, proceed against both? And can a warrant on such action be refused? And, as the name of the other hostage is not at present known, may not such action be entered in the name of Burt and company as hostages?"

Answer."I do not know any instance of a warrant issuing against the master in such a case. The ship and goods are in the first place answerable for the redemption of a hostage.

"These may be arrested, and the suit may be brought by Burt's relations on behalf of both the hostages, naming the one and describing the other of name at present unknown."

G. HAY, January 24, 1761.

"In the first instance I think you cannot proceed against the master. If the ship and goods will not produce the sum stipulated for the ransom, and you can show that the master fraudulently ransomed, I think he may then be prosecuted on behalf of the hostages."

THE "PATRIXENT."

OPINION OF WM. WYNNE, 1781.

(Marsden's Admiralty Cases, 398.)

A British ship was ransomed by an American captor, and a hostage taken. The bill was sent to Holland to be forwarded to England for collection. The opinion was that a suit on the ransom bill could be maintained against the master and owners of the ransomed vessel, but, it must first be shown that the hostage was detained or dead.

The ship Patrixent, Hannibal Lush, master, was taken by an American privateer, and was ransomed for £5,500 sterling, and an hostage delivered, who was carried to America. For the above sum the captain of the ransomed ship drew a bill upon Messrs. John Glassford & Co., merchants in Glasgow, a copy of which is underwritten, who are owners of the vessel.

The ransom-bill was sent to Amsterdam, and from thence remitted to merchants in London, to recover the value of it. When it was first presented to the gentlemen upon whom it was drawn, they offered £1,000, part of it, as the value of the ship; but it not being thought prudent to receive a part of the money, their offer was then

refused since which the said gentlemen, together with the owners of the cargo, have refused to pay the bill or any part of it.

Your opinion is desired whether the holder of this ransom bill can maintain a suit in the Admiralty Court against the owners of the ship and cargo for the recovery of the sum for which such bill was given? And whether such suit must be brought against every individual owner of the ship and cargo.

"£5,500.

COPY OF THE BILL.

On board the schooner Hanna.
July 26, 1779.

"At ninety days' sight my second bill of exchange, first and third of the same tenor not paid, pay to Richard Jackson or order the sum of five thousand five hundred pound sterling, for the ransom of the ship Patrixent and her cargo.

"To Messrs. JOHN GLASSFORD & Co.,

"Merchants, Glasgow."

HANNIBAL LUSH.

Answer. "I think that the owner of this ransom-bill may maintain a suit in the Court of Admiralty for the recovery of the sum for which the bill was given; but I apprehend they must make it appear that the hostage is not at liberty, if he is living, before they can obtain payment of the money. The proper way of commencing such a suit would be by arresting the ransomed ship with the cargo on board. But if that cannot be done, I think it will be sufficient to bring the suit against Lush, the master, who drew the bill, and Messrs. Glassford & Co., the owners of the vessel, upon whom it is drawn."

WM. WYNNE, Doctors' Commons, July 25th, 1781.1

1 Ransom Contracts.-In a subsequent case, Anthon v. Fisher, 2 Douglas, 649, note, it was settled in English law that an alien enemy cannot sue on a ransom bill for want of a persona standi in judicio.

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And so in the case of the Hoop, 1 C. Rob., 201, Sir W. Scott said, even in the case of ransoms which were contracts, but contracts arising ex jure belli, and tolerated as such, the enemy was not permitted to sue in his own proper person for the payment of the ransom bill; but the payment was enforced by an action by the imprisoned hostage in the courts of his own country, for the recovery of his freedom."

"But the effect of such a contract," says Wheaton, Ed. of 1863, p. 695, like that of every other which may be lawfully entered into between belligerents, is to suspend the character of an enemy, so far as respects the parties to the ransom bill; and, consequently, the technical objection of the want of a persona standi in judi

SECTION 33.-COMMERCIAL DOMICIL.

THE "INDIAN CHIEF."

HIGH COURT OF ADMIRALTY, 1801.

(3 C. Robinson, 12.)

This was the case of a ship and cargo seized in the harbor of Cowes, on a voyage from Batavia to Hamburg, in which two questions arose, respecting the national character of the owners of the ship and cargo respectively, both American citizens residing in British territory, and charged with trading with the enemy.

Held, That a neutral merchant residing in a belligerent country is to be regarded as a belligerent trader; but that the moment he puts himself in motion bona fide to return to his native country sine animo revertendi, he loses his belligerent character, and resumes that of a neutral.

"This is the case of a ship seized in the port of Cowes, where she came to receive orders respecting the delivery of a cargo taken. in at Batavia, with a professed original intention of proceeding to Hamburg; but on coming into this country for particular orders, the ship and cargo were seized in port. It does not appear clear to the court, that it might not be a cargo intended to be delivered in this country, as many such cargoes have been, un

cio cannot, on principle, prevent a suit being brought by the captor, directly on the ransom bill." And this appears to be the practice in the maritime courts of the European continent. (Valin, Ord. de la Marine, liv. 3, tit. 9, art. 19; Pistoye et Duverdy, I., 280 et seq.)

"If the ransomed vessel," says Wheaton, Ed. of 1863, p. 694, "is lost by the perils of the sea, before her arrival, the obligation to pay the sum stipulated for her ransom is not thereby extinguished. *** Even where it is expressly agreed that the loss of the vessel by these perils shall discharge the captured from the payment of the ransom, this clause is restrained to the case of a total loss on the high seas, and is not extended to shipwreck or stranding, which might afford the master a temptation fraudulently to cast away his vessel, in order to save the most valuable part of the cargo, and avoid the payment of the ransom. *** So, if the captor, after having ransomed a vessel belonging to the enemy, is himself taken by the enemy, together with the ransom bill, of which he is the bearer, this ransom bill becomes a part of the capture made by the enemy; and the persons of the hostile nation who were debtors of the ransom are thereby discharged from their obligation."

On the subject of ransom generally, see Judge STORY's opinion in Maisonnare v Keating, 2 Gallison, 337.