in the hands of Vandyke, are feized in England," and directs the master to go to London immediately, to endeavour to obtain reftitution, but recommends Wolff and Dorville; but ftill the appointment of the mafter prevails. The mafter had written on 22d October:-"I alfo obferve you with Meffrs. Wolff and Dorville to have the bufinefs, to which I would gladly comply, had we not already given the whole management to Mr. Vandyke and Mr. Broomfield, who have orders to remit two-thirds of the value, or honour draft to that amount, on your account." And, notwithstanding the direction of Mr. Pefchier, in his letter of 21st December, the bufinefs remains in the hands in which the mafter had chofen to place it. Is not this a feature of a moft extraordinary nature, that a merchant fhould acquiefce in the adoption of an agent, utterly unknown to him, and obtruded on him by the officioufnefs of this volunteer agent in Holland? Looking at the whole of this cafe, I find fo many improbabilities attending it, in every part, that I cannot compel my mind to a belief the property is as claimed; and, adverting carefully to the nature of the feizure, (which I have faid ought to entitle the parties to every favourable confideration), I must ftill think, that the proof does in no degree correfpond with the claim. The confequence will be, that this cargo must be pronounced fubject to condemnation. The CONQUEROR. Jan. 16th, 1800. VOL. II. Jan. 16th, 1800. Cafe of domicil -respecting the national cha racter of a part can house, refid ner in an Ameri ing for a con THIS THE HARMONY, BOOL Master. HIS was one of feveral American veffels in which a claim had been referved for part of the cargo, on farther proof to be made of the national character of G. W. Murray, who appeared in the original case, fiderable time in as a partner of a house of trade in America, but percountriesHis fonally refident in France; reftitution had been decreed in the feveral claims to the houfe of trade in property of an America, with a refervation of the share of this partner. The cafe was argued on this day, and again, on production of further affidavits at feveral times. the enemy's property confidered as the enemy. Condemned. JUDGMENT pronounced November 19th, 1800. Sir W. Scott. -This is a queftion which arises on several parcels of property claimed on behalf of G. W. Murray; and it is in all of them a question of refidence or domicil, which I have often had occafion to observe, is in itself a queftion of confiderable difficulty, depending on a great variety of circumftances, hardly capable of being defined by any general precife rules: The active spirit of commerce now abroad in the world, ftill farther increases this difficulty by increafing the variety of local fituations, in which the fame individual is to be found at no great distance of time; and by that fort of extended circulation, if I may fo call it, by which the fame tranfaction communicates with different countries, as in the prefent cafes, in which the fame trading adventures have their origin (perhaps) in America, travel to France, from France to England, from England back to Ame rica again, without enabling us to affign accurately the exact legal effect of the local character of every particular portion of this divided tranfaction. In deciding fuch cafes, the neceffary freedom of commerce impofes likewise the duty of a particular attention and delicacy; and ftrict principle of law muft not be preffed too eagerly against it; and I have before had occafion to remark, that the particular fituation of America, in refpect to distance, seems ftill more particularly to entitle the merchants of that country to fome favourable diftinctions. They live. at a great distance from Europe; they have not the fame open and ready and conftant correfpondence with individuals of the feveral nations of Europe, that these perfons have with each other; they are on that very account more likely to have their mercantile confidence in Europe abused, and therefore to have more frequent calls for a perfonal attendance to their own concerns; and it is to be expected that when the neceffity of their affairs calls them across the Atlantic, they should make rather a longer ftay in the country where they are called, than foreign merchants who step from a neighbouring country in Europe, to which every day offers a convenient opportunity of return. In confidering this particular cafe, it may not be improper to remark, that circumstances occur in the evidence that addrefs themselves forcibly to private commiferation, remarking, however, at the fame time, that public duty can allow only a very limited effect to fuch confiderations, and still lefs to another that has been preffed upon me, that the money, if restored, is to go in payment of debts due to British creditors, Y 2 The HARMONY. Jan. 16:h, 1800. The HARMONY. Jan. 16th, 1800. creditors, from the bankrupt eftate of this unfortunate perfon. My bufinefs is to inquire whether he is entitled to recover it, without regard to the probable application of it, if it finds its way again into his poffeffion. Of the few principles that can be laid down generally, I may venture to hold, that time is the grand ingredient in conftituting domicil. I think that hardly enough is attributed to its effects; in moft cafes it is unavoidably conclufive; it is not unfrequently faid, that if a perfon comes only for a fpecial purpofe, that fhall not fix a domicil. This is not to be taken in an unqualified latitude, and without fome respect had to the time which fuch a purpofe may or fhall occupy; for if the purpose be of a nature that may, probably, or does actually detain the person for a great length of time, I cannot but think that a general refidence might grow upon the fpecial purpose. A fpecial purpose may lead a man to a country, where it shall detain him the whole of his life. A man comes here to follow a law fuit; it may happen, and indeed is often used as a ground of vulgar and unfounded reproach, (unfounded as matter of just reproach though the fact may be true), on the laws of this country, that may laft as long as himself: Some fuits are famous in our juridical history for having even outlived generations of fuitors. I cannot but think that against fuch a long refidence, the plea of an original special purpose could not be averred; it must be inferred in fuch a cafe, that other purposes forced themselves upon him and mixed themselves with his original defign, and impreffed upon him the character of the it country country where he refided. Suppofe a man comes into a belligerent country at or before the beginning of a war; it is certainly reasonable not to bind him too soon to an acquired character, and to allow him a fair time to disengage himself; but if he continues to refide during a good part of the war, contributing, by payment of taxes, and other means, to the strength of that country, I am of opinion, that he could not plead his special purpose with any effect against the rights of hoftility. If he could, there would be no fufficient guard against the fraud and abuses of masked, pretended, original, and fole purpofes of a long continued refidence. There is a time which will eftop fuch a plea; no rule can fix the time a priori, but fuch a time there must be. In proof of the efficacy of mere time, it is not impertinent to remark, that the fame quantity of bufinefs, which would not fix a domicil in a certain space of time, would nevertheless have that effect, if distributed over a larger space of time. Suppose an American comes to Europe, with fix contemporary cargoes, of which he had the prefent care and management, meaning to return to America immediately; they would form a different cafe from that, of the fame American, coming to any particular country of Europe, with one cargo, and fixing himself there, to receive five remaining cargoes, one in each year fucceffively. I repeat, that time is the great agent in this matter; it is to be taken in a compound ratio, of the time and the occupation, with a great preponderance on the article of time: be the occupation what it may, it cannot happen, but with The HARMONY. Jan. 16th, 1800. |