The Registrar faid, That there had been certificates given, in one instance by himself, with which another Court was fatisfied. The ROSALIE AND BETTY. Feb. 5th, 1800. THIS THE POLLY, LASKY Mafter. to Feb. 5th, 1800. duce of the ene my imported in- on to Spain: confiderations Reftitution. HIS was a cafe of an American fhip, taken on a Colonial provoyage from Marble Head to Bilboa, 16th October 1799, with a cargo of fifh, fugar, and cocoa: the fhip had been restored. With refpect the cargo, it was faid on the part of the captor, that it was a cafe of farther proof; that it appeared from desending: the depofition of the mate, that the fugar and cocoa had been brought from the Havannah to America, and from thence fent on for Spain; from which a fuspicion must neceffarily arife, of Spanish intereft; that, if it was even neutral property, a queftion of law would arife, whether fuch a trade was not to be confidered as a direct trade between the colony of the enemy and the mother country. It was farther faid, that the mate had depofed, that the mafter had confeffed to him, that he had deftroyed fome papers, which of itself would fubject the claimant to the neceffity of making farther proof. On the part of the claimant it was faid, That the principal part of the lading confifted of falt fish, for the Spanish market; which made it extremely defirable that it should be fet at liberty, in order to profecute the voyage before the beginning of Lent. That it was not in the power of the claimant to take the cargo The POLLY. Feb. 5th, 1800. cargo on bail, by fubmitting to farther proof, as the correfpondents of the owner in this country had refused to take the cargo on bail. It was therefore preffed that the cafe might be heard on the original evidence; which was faid to be very full and fatiffactory, and fufficient to obtain immediate reftitution In refpect to the tranfhipment, it was faid to have been of but a fmall quantity of cocoa; that the fugár was part of a whole cargo, which this veffel had brought on a former voyage from Havannah to Marblehead; that as to the fuppreffion of papers which the mate fpoke of, it was doubtful what was the nature of the papers; and that it was the act of a man who was infane, and had fince destroyed himself. Court. As there has been a fpoliation of papers, and as the account given of that act is but conjectural, it must be a cafe of farther proof. It might be an act of infanity in the mafter only, but that must be made out in proof. It is impoffible for the Court to relax the rule, that where there has been a fuppreffion of papers, there must be farther proof. 29th April 1800, this caufe came before the Court again on farther proof. For the captors, the King's Advocate and Arnold. When this caufe firft came on, it was contended that farther proof could not poffibly be demanded; but now it appears that the parties themselves were aware of the difficulties of their cafe, and had actually fent for farther proof from America, before the Court ordered it; the tranfaction which now discovers itself in the farther proof, gives rife to a queftion question on the property, and a queftion on the legality of the trade. It appears that the afferted purchase at the Havannah was made partly by bills, drawn on the Havannah by Gardoqui of Bilboa, and partly by bills drawn at the Havannah by the purchafer on this houfe in Spain; that part of the cargo, the fugar, being the produce of the Havannab, was carried by this very fhip, in June 1799, to America, and there, after fome repairs done to the ship, re-fhipped for Spain in Auguft; and the cocoa alfo was originally brought from a Spanish fettlement of Laguira, and tranfhipped from another schooner lying at Marblehead in America, under an original deftination to Europe. Suppofing this to be a trade between the colonies and the mother country, this mode of communication is natural and intelligible; but if it is confidered as the foundation of the acquifition of this property by perfons in America, it is quite otherwife, and is utterly improbable. It is faid, that the owners had received these bills in payment for cargoes fold in Spain, but it is ftill not credible that they should take bills of this nature, drawn on perfons in a colony not generally open to foreign trade. The fequel is of a fimilar complexion; the inftructions of the master on this voyage are," to go to Bilboa, and if you meet with no one who will do your business better, to apply to Gardoqui and Co.," from which it is evident that they were deeply involved in the whole tranfaction. There is alfo the account current which Mr. Gardoqui fent to Hooper in America, in which he debits Hooper for two bills on the Havannah, at 5 per cent. on the faid bills, and with his Gardoqui's remittances The POLLY. Feb. 5th, 1800. The POLLY. Feb. 5th, 1800. in four bills on the Havannah, and 5 per cent. on which was a trade of a fimilar nature between Surinam and Holland, the fhip and cargo were both condemned. [Court. -Is it contended that an American might not purchase articles of this nature and import them, bond fide, to America on his own account, and afterwards export them?] It was answered -No; that was not contended; but that the truth and reality of the importation for his own account was the point in queftion; that all the circumstances in the cafe pointed to a near connection with Spanish interefts; and that no proof was brought of the payment of the duties in America, nor that the tranfaction was in any way conducted like a bond fide importation for the American market. [Court. -It feems to me, that this is the material point, and that it is left fo bare, that it is almost useless to examine the other facts till that is eftablifhed; and that it would be better to reserve the whole cafe till farther information is produced on that subject.] For the Claimants, Laurence. The Court will perhaps not think it neceffary to make that a preliminary question in the prefent cafe, if it confiders the nature of this cargo, and the circumftances attending it. The principal part of the cargo is fifh, to the amount of 1800 quintals, on which no queftion refpecting the legality of the trade is raised; of the remaining part, confifting of fugar and cocoa, the fugar is but a fmall parcel, taken for the purpose of making up the lading; and the cocoa is pofitively certified The POLLY. Feb. 5th, 1800, |