cargo would have been long ago fafe in Copenhagen or America. But what is more material, it is to be remembered that, before the prefent claim was given, a disclosure of evidence had been obtained from the papers of fome other cafes; in the Nancy, which was a hip under the management of the fame parties, it had come to light that Mr. Inglehart was concerned in the cargo of the Eenrom, and in the exact proportion which fquares with Mr. Fabritius's amended claim; this circumstance very much detracts from the merit of the confeffion; there being every reason to prefume that no fuch claim would have been given if the evidence already exhibited in that cafe had not fhewn that a claim for the whole would be completely falfified-if so, the purpose of fraud is abandoned, merely because it can no longer be maintained. Is the Court then to believe that Mr. Fabritius came into this country with an intention of making this disclosure, and of making the claim as it now ftands? or that he meant to hold out the property to be as the formal papers reprefent? When I look to the other steps leading to this fraud, when I find all the papers on board in this tenor, and fee the master and the difplaced master using the fame language in their depofitions, even after their arrival in this country, it would be a strain of charity, much beyond what is confiftent with justice, if I did not fay that it was an intention, carried into effect, to cover the whole cargo, as the property of Fabritius and Wever, by perfons knowing the contrary, and whofe acts will legally affect their employers: What in my judgment decifively proves that fuch was the determined pur pose The EENROM. May 21st, 1799. The EENROM. May 21st, 1799. pofe of the parties is, the fact that appears, that this ship was first carried into Lisbon, and that an inquiry was there instituted respecting the property of this fhip and cargo. It has been preffed upon the Court, by the captors, to receive the depofitions there made by Mr. Fabritius and others; but the Court has declined to receive thofe depofitions, as irregularly taken, and therefore cannot advert to them. How Mr. Fabritius swore upon that occafion, with refpect to this cargo, I cannot fay; but I cannot think it otherwife than highly probable, that he reprefented the property as entirely belonging to the house of Fabritius and Wever; because I think it impoffible that after fuch an inquiry had been pursued at Lisbon, the master and the difplaced mafter fhould have continued in the error (if it is a mere error) that has led them to depose here to the same effect; unless he had fo held it out, as well in those depofitions, as in the converfations which he muft fince have had with them, prior to their examinations here. And when I recollect his extreme eagerness to be examined here upon his arrival, I cannot but think that he was at that time fully prepared to fupport upon oath the fame representation; and that nothing but. the fubfequent information he received, that the fecrets had already been betrayed by the papers of the Nancy, prevented him from fo doing. With respect to the ship, Is the property in that fo proved as to fupport a claim for reftitution without farther proof? If that could be maintained, I might perhaps allow it to be distinguished from the other part of the cafe. But if farther proof is neceffary, it comes to this question, Are persons so convicted of of an attempt to impofe on the Court entitled to the privilege of giving farther proof? The fhip was built at Batavia, and has been conftantly trading from Batavia. It must have been the property of Dutchmen; and therefore under any circumstances a bill of fale would be neceffary; and under the particular circumstances which I have pointed out, a bill of fale could hardly be deemed fufficient. But a thicker cloud is raised over this part of the case, from what appears from a paper in the Nancy, which is figned by Inglehart, and states-"I fhall accompany this with the accounts of the Eenrom, of which Meffrs. Fabritius and Wever are fharers." It is faid that this applies to the cargo only; it may be fo; it is a poffible explanation; but how can this be proved? It can be only by farther proof. Again: There are many paffages in which Mr. Inglehart feems to affume great authority over the conduct of the veffel. It is faid that this was in confequence of a charter-party, by which he had chartered the veffel: It may be fo; but this is matter of explanation only, and of farther proof; as it is left at prefent, on the face of it, very ambiguous. There being the neceffity of farther proof, have the parties placed themfelves in a fituation in which they are entitled to a privilege of this kind? It is a rule that I fhall uniformly adhere to, till I am better inftructed, that where a party has been convicted of an attempt to impofe on the Court in the fame transaction, the privilege of farther proof fhall be denied him, as a privilege which is justly forfeited by deception and fraud; I fhall therefore pronounce both the ship and cargo fubject to condemnation. The EENROM. May 21st, 1799. THE VRYHEID, Admiral De Winter. Claim of joint THIS was a cafe of an allegation of joint capture on behalf of the Veftal frigate, in the capture of capture-conftructive affift ance not to be extended the Dutch fleet under the command of Admiral claim rejected. De Winter, October 11, 1798.-The substance of the allegation is recited in the judgment; vide infra. Against the Allegation, the King's Advocate and Laurence-The legal principles on which this queftion must be decided, lie, it is apprehended, in a very narrow compass, although it is a queftion of very confiderable importance; and one in which the navy are waiting, with great anxiety, for the decifion of this Court: the allegation afferts only the merit of being affociated in one common fervice, without fetting forth any averment of being in fight at the time of capture. Formerly, it is well known, jointcapture was confined to cafes of actual co-operation; and when, in confequence of frequent litigations, it was extended to cafes of conftructive affiftance, for the purpose of preserving harmony and a good understanding in the navy, the being in fight became the principal criterion; and even that circumstance was in all cafes not allowed to be fufficient, if there was anything to rebut the general prefumption of intimidation and encouragement proceeding from it. It is on this prefumption of intimidation conveyed to the enemy, and of encouragement given to the actual captor, that the principle of constructive affiftance is founded; and unless it is extended much beyond what pre what has ever been done in former inftances, the In Support of the allegation, the Advocate of the Admiralty, and Arnold-This is a queftion of very great importance to the navy, as a general queftion; and, therefore, if the Court entertains but a flight doubt about the admiffibility of this allegation, it will, in conformity to the general practice of the Admiralty, and the Ecclefiaftical Courts, admit it to proof, referving the question of law to be confidered, together with the facts of the cafe, at the final hear VOL. II. ing: The VRYHEID. June 19th, 1799. |