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T&ffi MEAtm ABCBBUM
ANB AGRICULTURAL A AII MERCANTILE OTELLIGE^CER.
f* i* itiled and published on Faestfays and Fridays., by illarmadukc /. Slade, at Five Hollars per annum, payable in advance .
VOL. I.
Georgia, Houston Comity.
rPHIS ImlentuiP, made this 27th of April, iuth'e
1- year of our Lord 1830, between James G. Parks
of the county and state aforesaid, of the one part,
and Joint Fletcher, of'the county of Jones and
state aforesaid, of the other part, witnesseth: —
That the said James G. Parks did on the fifth day
of February 1830, make, and deliver to the said
John Fletcher his two certain promissory notes,
subscribed with his own proper hand, and bearing
date the said fifth day of February, 1830, by one of
which said notes, the said James G. Parks pro
mised to pay the said John Fletcheror bearer, the
sum of twenty-one hundred and sixty dollars, on
or before the twenty-fifth day of December next
ensuing the date hereof, for value received : And
by the other of said notes, the said James G.
Parks promised to pay the said John Fletcher or
bearer, the sum of twenty-one hundred and fifty
five dollars on or before the 25th of December 1831,
for valnefeceived: And also that the said James G.
Parks is indebted to the said John Fletcher in the
just sum of five hundred dollars by open account,
for goods, wares and merchandize, sold and deli
vered to him by said Fletcher, and for money lent
and advanced to him. by said Fletcher, and for
money had and received by him the said James G.
Parks for the use of said John Fletcher. Now,
for and in consideration of the sum of five dollars,
by the said John Fletcher to the said James G.
Parks in hand paid, the receipt whereof is hereby
acknowledged, as well as for the better securing
the payment of the aforesaid two promissory notes
and the said open account, the said James G.
Parks hath granted, bargained and sold, and doth
by these presents grant, bargain and sell unto the
said John Fletcher, his heirs and assigns, all that
lot or tract of land, lying and beingin the fifteenth
district of said county of Houston, and known and
distinguished in said fifteenth district of Houston
count}', by number two hundred and three, toge
ther with all and singular the growing crop of
corn, cotton and sugar cane thereon, consisting of
•sixty acres of corn, eighty-five acres of cotton, and
one acre and a half of sugar canc, three negroes,
Judah a woman about forty years of ago, Charles
a hoy (Judah’s child) about ten years of age,
John a boy (Judah’s child) about seven years of
age, three head of horses, two sorrels bought of
Chappel & Holcomb of North-Carolina, one a
chesnut sorrel bought of William Cole, one road
waggon, one ox-cart, one yoke of led steers, fif
teen head of stock cattle marked with a crop and
split in each ear, forty head of stock hogs mark
ed with a crop and split in each ear, four beds,
bed-steads and furniture, one dozen chairs, four
ploughs and plough gear, five axes and six weed
ing hoes, and the remainder of a stock of goods,
consisting of cloths, calicoes, muslins, hats, shoes,
spirituous liquors, and other articles of merchan
dize, amounting to two thousand dollars or there
abouts —To have and to hold said bargained pro
perty to the said John Fletcher, hi.; heirs and as
signs, to his and their own proper use, benefit and
behoof forever: And the said James G. Parks for
himself, his heirs, executors and administrators,
the said bargained property unto the said John
Fletcher will warrant and forever defend against
the claim of himself and his heirs, and again"! the
claim of all other persons whatever: Provided ne
vertheless, that if the said James G. Parks, his
heirs, executors and administrators, shall, and do
well and truly pay or cause to be paid unto the said
John Fletcher, his heirs and assigns the afore
mentioned notes and account, (amounting inclu
sive to the sum of forty-eight hundred and fifteen
dollars,) on the days and times mentioned and
appointed for the payment thereof in the said pro
missory notes mentioned, with lawful interest for
the same according to the tenor of said notes,
then and from thenceforth, as weii this present
indenture, and the right to the property thereby
conveyed as to the said promissory nates and the
said open account will ccasc, determine and be
void 'to all intents and purposes: And the said
John Fletcher doth hereby covenant and agree to
and with the said James G. Parks that he the
said John Fletcher will not foreclose this mort
gage before the first day ef January in the year
1832, and that ho the said John Fletcher will
permit the said James G. Parks and family to re
main in the houses now occupied by them, and
out of the profits and income of the property here
by conveyed, the said James G. Parks and fami
ly arc to be supported until the said first day off
January eighteen hundred and thirty-two: Provi
ded, that the said James G. Parks is not to exer
cise any controul or management whatever over
any of the said property In reinbefore conveyed,
but the same is to remain in the possession and
under the controul of the said John Fletcher, who
is to conduct and manage the same to the best
advantage and to apply the incomes and profits,
other than what shall bo necessary to support
said Parks and his family as aforesaid, to the
payment of said promissory notes and the said
account, and after paying oil' the said notes and
account, if there should be any of the aforemen
tioned property remaining, then the said John
Fletcher ia to return the same to the said James
G. Parks, his heirs or lawful representatives.
In testimony whereof, the said James G. Parks
hath hereunto set his hand mid seal, the day and
year first before written.
Signed, JAMES G. PARKS, (L.S.)
Simied, sealed and delivered in presence o! )
WILLIAM MIZELL, C
ROBERT PE ACOCK, J.P. 3
Ccargia, Houston County.
Personally appeared before me, \\ esley W il-,
limns, who being duly sworn, deposeth and saith,
that he as agent for John Fletcher, was in pos
session of a ‘mortgage executed by James G.
Parks to said John Fletcher,ot".vhieh l\e believes
the instrument hereunto attached is a true copy,
and that said mortgage has been lost, mislaid or
destroyed, so that he cannot find it. Ibis Ist
4uly, 183d. WESLEY WILLIAMS.
Sworn to and subscribed before )
ROBERT PEACOCK, J. P. S
(Sc orgl3...llcuston County.
Personally appeared before me, Vi iJima Mi*
sell, who being duly sworn depoeetli arid saMn,
that, ho was a subscribing witness with hooert
Peacock, Esq. to a mortgage executed by Joi/ms
G. Parks to John Fletcher, and that the inst.ai
ruent hereunto attached is a true copy thereof m
form and substance, so far as his recollection
serves him. This Ist day July, 1830.
WM. MIZELL.
Sworn to and subscribed before me, 7
ROBERT PEACOCK, J. P. i
In Houston Superior Court, Oetotorr mtjouiu*
fil Term* 1830.
John Fletcher
The representatives, heirs and creditors oil
James G. Parks,dec. late of Houston <'minty. J
IT appearing to the Court, on the petition ot
John Fletcher, that bo by his agent W <sley
W illiams, was in the possession of an original
deed of mortgage, which had been duly executed
by the said James G. Parks in his life time, of
which original mortgage deed the annexed is a
copy in substance, and that the said original has
been lost, mislaid or destroyed so that it cannot be
tuund. It is therefore, on motion, ordered, that
the representatives, heirs and creditors of said
James G. Parks, deceased, show cause at the next
term of this Court, why the annexed copy should
not be established in lieu of the said original deed
of mortgage, which has been lost, mislaid or de
stroyed as aforesaid: And that this rule be pub
lished for the space of three months previous to
the next term of this Court.
GEORGIA, ) I, Edward Welch, Clerk of
Houston County, y the Superior Court of said
County, do hereby certify, that the above and
foregoing is a true extract taken from the minutes
of said Court. EDW’D WELCH, Cl’k.
dust Received, at
Family grocery A* confection/: '/,
A N additional supply of the different article .i
1 v his line, among which, are
Offl Madeira Lemons
Claret , Figs
Port Prunes
Sherry 3WiIIC. Almonds
Champaigne Olives
Muscatel and Capers
Malaga J Citron
Claret Isabel-Y Filberts
la and [Domestic Fruits in Brandy
Georgia Ma- ( WINES Raisins
deira J Sugar Plumbs
BSS-" 4 ***-* oSvToil
Holland Gin Table Salt
Irish Whiskey Loaf& Lump Sugar
Jamaica and > p Sperm Cadies
St. Croix j turn. SaeapagosPecauh
Cordials and Syrups Pecan, Brazil, (_ bj
Smoked Beef and Cheese Madeira, and • 5-
Sugar toys, cake,&c Hickory J
And most other articles in the Confeetiionary line.
Constantly on hand ,
Spanish Sc gars, Sk best Tobacco.
The above Goods are fresh, and will be
sold at the lowest Augusta wholesale prices.
April 18 I-tf
"saASvfjiY j js 9
JWutr the Tou-n Hall,
At the slajn of the Harp tad Eaji-.
mm® vmm 9
[PROPRIETOR of this establishment take? ’he
. usual mode of informing his patrons and the
public, that he has completed his arrangements
for their accommodation, which comprise; n en
tire suit of rooms, (including elegant sej: he a
partments for select part* , withftre placer, -,:c.)
He has erected a Cook House on an improved
plan, which will be allways supplied with hie
must savoury eatables that can be procure a here
or elsewhere, including
Hot Steaks, Cutlets,
Chops, Boiled Fowl",
Stewed, Eggs,
Fried & C Oysters. Soused Salmon,
Plain j Shrimps,
Tongues With good C h. c,
Venison, " &c. &x.
His Confectionary and E? ir
Are well stocked with a selection of ch..:co
Wines, French 7
Holland Gin, And eld h Brandy.
Jamaica & 5 n Peach 3
St. Croix $ Rum Fruits, Cheese,
Genuine Cordials Conserve?, &c.
All of which he submits to the judgment of
his friends, to whom he returns si uet.ro thanks
for their liberal patronage.
April 16 Ltd
Clinton Motel*
THE undersigned returns his thanks to his
friends and the public, for the liberal patron
awe he has received since Iris'comm * on! in
this place. He takes this method to •ioh a con
tinuance of that patronage, and rassurvkis frit a
that his utmost exertions will be used ’at' _■ ac
commodation of those who may call upon him.
The large and commodic s i.Uti.uns n.: •t>
this establishment, {has enabled the undersigned
to make his guests more comfortable. V. -th con
venient pasturage and a fine vegetable garden; the
same attentive ostler and house server.:.--; a splen
did bar; with an experience of m ;re than seven
years in this business at this estai-.'Chmont, com
bined with his personal attention, ho fiata rs him
self that he will be enabled to continue to give
satisfaction to all those who may fever him with
a call. JOHN CARTER.
C 1 i nton, Ga. April 18 1-tf
Candles, on Consignment,
BOXES Tallow Candles, on Consignment,
ill * just received, and for sale by
R. B. WASHINGTON.
April 15 1~8
.lionet)! .Honey!! .Honey!!
In abundance in Market*
To owners in Gold Alines, Plantations, ■
and other properly.
rrillE subscriber begs leave to inform his faiends
iff and the public, that he is daily visited by ca
pitalists, whose funds are great and who arc desi
rous and anxious of purchasing vvholes or shares
of properties, —improved or unimproved—who |
wish to become proprietors or partners of Gold
Mining Companies —or would loan and invest mo
uey at reasonable interest, satisfactorily secured—
would invest and advance their money in any way,
provided they were secured and satisfied of reali
zing a fair and reasonable interest tor thesarrtc
Therefore, those who wish to sell or mortgage
property, or get cash partners, will do well to ap
ply to the subscriber per mail, forwarding every
necessary information and instruction, accompa
nied with an advance retaining office fee of ©5 or
*10 —Postage ineverv instance to be paid.
. ° GKO. W. EVER ITT,
Real Estate, Brokers', Attorneys' and General agent ,
so. :u,
South, Fourth Street, Philadelphia.
Eeb. 16 DAw
Of every description.
it. ssAiiiJhi
r /f. ,//>r jfcc/'V'rfcrr
MACON : FRIDAY, APRIL 22, 1831.
“These are counsellors
“That feelingly persuade me what I am.”
LAW OF INSURANCE.
Mercantile law has for its object the inter
ests oT a widely extended community : trade,
in some of its incidents or effects tnay con
cern every individual, whatever are his pur
suit? ; and in its immediate exercise it com
prehends a numerous class in every coun
try. Its principles and practices are not pe
culiar to the commerce of a single nation,
but are in their essential features the same in
all: they bring into close and intimate rela
tionship the inhabitants of the various sec,
tions of the globe: they increase the com
forts of life, refine the manners, and enlarge
the sphere of human knowledge. What
would be the condition of any single country
if it were denied a participation in the im
provements and discoveries of others? What
may not its condition become when by the
aid of commerce it can appropriate to itself
the advantages of all ? The rules which gov
ern an intercourse so universal, cannot fail
to possess the deepest interest and the high
est importance: they boast too a clearness
and simplicity compared with those of any
other system, as remarkable as their value
is unquestionable. Many of the depart
ments of legal science are filled with doc
trines abstruse and complicated, and the ap
plication of them to practical purposes is
eftenembarrassing and difficult: but com
mercial law has few, if any mysteries; its
comprehension is comparatively easy, and its
uses are direct and obvious. Founded in rea
son, and designed for daily and universal
practice, its subjects require but the exercise
of sound sense to comprehend them. Pro
moting the honest purposes of an honest call
ing, its rules are easily obeyed by conform
ing to the dictates of integrity and good faith.
A clear head, an upright heart, and an untir
ing hand can scarcely fail to ens ure'eminenco
and respectability, if not uniform success in
trade.
The subject of the few practical remarks
now to be offered, is especially entitled to the
commendation which is with great sincerity
bestowed upon the system of mercantile law
in general. It calls for the exercise of the
purest integrity; it requires for its due and
useful applications certain degree of know
ledge; and it tends to those inquiries and uat
tainments which are profitable in every de
partment of mercantile life: wc allude to the
subject of Marine Insurances.
More modern than most of the branches
even of commercial law, insurance may be
considered entirely free from the arbitrary
rules which continue to find a place in many
other systems, when the origin and the rea
o:i of them arc no longer discernible. The
r pid advances which have been made in the
science of geography, the extensive improve
ments in commerce and navigation, and the
various advantages vvhicfi have been the re
sult, have kept pace for the most part with
the practice of dividing the chances of disas
trous expeditions with collections of indi
viduals whose united resources are competent
to sustain them. It is difficult indeed to un
derstand how commerce could at any time
have subsisted at all without insurance.—
Few would he so rash as to incur the expen
ses of a hazardous adventure if in the event
of failure the entire loss were to fall upon
m’selves: fewer still would have the means
to repeat their ill judged boldness.
It is a principle of fair and just calculation
that a trader should insure. In the estimate
o: expenditures the charge for insurance is a J
correct and reasonable item. Were the re- j
suit to depend merely upon obvious or ordi
nary contingencies, which it would be possi
ble for circumspection and care to avert, the
prudent merchant might build his adven
tures upon his own foresight, and rely for
his protection on the event: but caution and
sound judgment are not always earnests of a
successful voyage : they arc sufficient for or
dinary perils, and such, according to the
principles of the law, the insured continues
to bear. There are, however, extraordinary
dangers incident to the ocean, which it is im
possible always to avert: storms and tempests
are stronger than the best found ship: pirates j
and thieves, and even the caprice of the ofli-;
cci*. of a foreign government may defeat the ,
wisest expedition : the most skillful mariner
is always in the hands of providence. To
meet these and the like contingences is the
object of insurance.
Instead of individual resources, which
would inevitably sink under the burthen,
monied, or joint stock institutions or associ
ations cxiM in every community, whose accu
mulated moans enable them to meet without
suffering the accidents of trade; while the
multiplication of premiums supplies a fund )
for occasional losses, and generally even a j
surplus beyond them. They have all the i
advantage of combination without the evil of
monopoly : they even neutralize in times of
prosperous commerce, the very expenses of
insuring, as the returns in the shape of divi
dends from well conducted offices may be
looked to as an equivalent for the premiums
paid. But they are particularly ben
fiejfim cultivating and encouraging a lau
dable spirit of enterprise, w hich is the life
of commerce. If a well planned voyage re
alize the expectations of the adventurous
merchant, and his schemes are crowned_with
merited success, the golden harvest is his
own : if his expedition end in disappointment
he experiences tfio consolation that it is
without loss, and he receives an indemnity
which enables him to spread his sails anew
with the advantages of experience and reno
vated hope.
The spirit of commerce is thus kept per
petually alive, and perpetually in action: a
spirit which lias contributed more than any
other cause to the greatness of those nations
which in ancient and in modern times have
been distinguished for political influence in
proportion to their commercial enterprise
and resources: a spirit which animated the
Dutch merchant, who declared to Prince
Maurice that if any advantageous trade could
be carried on with the infernal regions, he
would run the risk of burning his sails.
The true object of this contract is indem
nity : it is misapprehended and abused when
it is perverted to purposes of gaming or of
gain; neither the one nor the other is its
lawful end: nor is either consistent with the
principle which makes it a part of regular
and enterprising trade. So far from being
an aid to commerce when thus misused, it
becomes its dangerous enemy. If one indi
vidual can stand by and see his neighbor
plan and execute a difficult voyage, and then
without risk of property or effort of ingenui
ty or industry, himself speculate or wager on
the result, the diligent and skillful are less
likely to prosper than the idle and unwise,—
But like every other species of gambling, it
will be found for the most part to be unprof
itable in the end. Fortune may sometimes
bestow her smiles on the undeserving, but a
prosperity unworthily acquired is the most
readily lost. The policy of almost every
code has discountenanced insurances except
on interest: they are expressly prohibited
by the ordinances of France, and most of the
commercial nations of Europe. In England,
il they were not bad at common law, (and it
is by no means clear that they were not,* for
lord Mansfield f speaks of a time “before the
introduction of wagering policies,” when “it
was upon principles of convenience very
wisely established, that a man should not re
cover more than lie had lost:”) a statute,j;
whether declaratory or remedial is unimpor
tant, prevents their existence in practice and
marks them with the express disapprobation
of the most experienced commercial people
ot the world. They have been styled by the
same learned judged just adverted to, mere
games of hazard, like t.Yj casting of a die.—
Accoreing to another learned judge,|| they
arc merely betting on the return of a ship.—
The wisdom of the New York courts, al
though it has not expressly approved, yet
has not expressly condemned them: they
have been recoguizcd by those enlightened
tribunals? with less of the spirit of true
policy than they are accustomed to manifest.
But the latest even of their authorities, while
it docs not directly recall flic sanction, ex
presses regret that wages were ever allowed
to be the subject of an action.** A wiser
policy refuses all alliance with the practice,
and asserts its clear incompatibility with the
sound principles of insurance law'. The Su
preme Judicial Court of Massachusetts, after
adverting to the great reluctance with which
a contrary doctrine was received as the com
mon law by the courts of England, and the
immediate interference of parliament to nul
lify such policies upon the doctrines being
so received, proceeds to pronounce it “a dis
graceful occupation of the courts of any
country to sit in judgment between two gam
blers, in order to decide which was the best
calculator of chances, or w hich had the most
cunning of the two: there could be but one
step of degradation below this, w hich is that
the judges should be the stake-holders of the
p; rties.”ft In Fennsylvaniajhe law speaks
the same clear and becoming language.—
Many years ago it.was agreed that although
we have no positive provision like the Eng
lish statute, yet the course and nature of
our trade have been always considered to
interdict w ager policies as fully as if there had
been a pointed regulation on the subject.—
Chief Justice Shippen had at a still earlier
day said, that the system of national policy
which dictated the British Act of Parliament
had been adopted by our courts §§ Justice
Ycates in the same case declares, “An insu
rance amongst us is a contract of indemnity :
to object is not to make a positive gain, but
to avert a positive loss. A man can never be
said to be indemnified against a loss w hich
can never happen to him: there cannot bo an
indemnity without a loss, nor a loss w ithout
an interest. A policy, therefore, made with
out interest is a wager policy, and has noth
ing in common with insurance but name and
form. 1 Marsh. 30. 97. It is not subservi
ent to the true interests of fair trade and
commerce, but is pregnant with as much mis
chief, both public and private, as can pro
ceed from any species of gaming which the
legislature has hitherto found it necessary to
repress. Every species of gaming contracts
where the insured having no interest, or a
colourable one merely, er having a small in
terest, much overvalue it in a valued policy
* See P?rko on Ins. 348.
I Godin Sal. vs. the Loud. As?. Cos. I
Burr. 492.
±l9 Geo. 2. e. 37'
§ Doug. 470.
|| Kent. I. Juhel vs Church. 2 Johns, cas
333,
f lb. and Clcndening v. Church. 3 Caines
Rep. 141.
** G Cowcn. 331. Bucliannan vs. Ocean Ins.
Cos.
If 2 Mass. Rep. 6. Aniory: v.
ff 4 Ycates, 1G 4 *. Craig Murgatroyd.
3 Ycates, 401. Pritchett vs. N. A. Ins.
under the cloak of insurance, are reprobated
both by our law and usage.”*
It seems not a little extraordinary that any
wagers should be made the subjects of judi
cial inquiry and determination: the time and
attention of courts of justice arc sufficiently
employed, one would suppose, in adjusting
unavoidable controversies and preserving the
great.landmarks which arc the safeguards of
property and liberty, without lending an ear
to the frivolous and voluntary disputes thus
created for them. A case very lately deci*
ded here f denies the lawfulness of any wa
ger which may effect the feelings or inter
ests of any human being. (It was a bet upon
the probability of the escape of Napoleon
from St. Helena.) Remote as the possibility
was that it could effect the peace of the pub
lic or the happiness of the individual, that it
could disturb the policy of a foreign govern
ment by endangering his liberation, or ag
gravate his own affliction by increasing the
rigour of his confinement, still it was de
clared void. A claim Was brought in the
Court of King's Bench in England not long
since, to recover the amount won upon a fight
between a couple of dogs: Lord Chief Jus
tice Abbott refused to try the case, being of
opinion that the time of the court was not to
be wasted in trying which dog or which man
won a battle, as the whole of these wagers
vvcrcillegal.f Lord Loughborough had
mariPycurs before refused to try an action
for a wager respecting the number of chan
chcs in throwing seven and eleven on two
dice.§ It is to be hoped that the time will
come when all kinks of bets will bo exclu
ded from the grave consideration of learned
courts. As to insurance at least it may be
considered as settled law here, that wager
policies, or insurances Without some substan
tial interest, vVhcthcr the want of it be con
cealed from the underwriter, or the actual
state of things be mutually understood, and
the fictitious risk be voluntarily assumed, are
null and void.
The next fundamental principle in the
contract is that which requires the most en
tire and absolute good faith. So much is
necessarily known on one side, and so little
on the other; or rather the particular knowl
edge, whatever it may be, is so exclusively
confined to the party desiring to protect him
self from loss, that he is under the most so
lemn obligation to exercise the utmost can
dor in his disclosures, and to use the most
unequivocal terms in the expression of them.
Most of the contracts of trade arc formed if
not with equal information at least with equal
opportunity to acquire it: each party suppo
ses the other to be fairly on his guard, and
acts and judges for himself: but the insurer
is placed entirely in the power of the ship
per as to most particulars, and receives ex
actly as much as it is his pleasure to com
municate. Deficiences may exist which will
never be supplied, and discolorations may be
given which can never be removed: one such
omission which conceals an important truth,
or one expression which suggests the reverse,
is fatal to the contract. In all the transac
tions of business integrity is the polar star;
but the sacred exercise of it in matters of
insurance is especially required, just as the
feeling and the display of generosity arc du
ties in war, in proportion to the defenceless
condition of the enemy* “The contract of
insurance,” say the Supreme Court of the
United States,§ “has been said to be a con
tract of the richest good faith, and the prin
ciples which govern it arc tliosc of an en
lightened moral policy.”
The last of these preliminary cardinal prin
ciples to be here adverted to, is that which
requires the voyage insured to be lawful:
lawful it must be, both as respects the gener
al principles of conscience and good morals,
and as it preserves a scrupulous deference
and regard towards the laws of the land.—
While this position is stated in explicit terms,
and may be received as one of undeniable
truth, a word of explanation is necessary to
avoid mistake. If both parties agree to in
sure a voyage undertaken in defiance of the
laws, no court of justice will lend its aid to
enforce the contract: it is of no consequence
what may have been the nature of the loss,
or how remote its cause from the prohibitions
of the violated law, in all its stages the pro
ceeding is void. The courts of the country I
whose common, statute, or maritime laws are
contravened, will permit neither the assured
to recover the loss, nor the insurer to recov
er the premium, nor the assured to recover
back the premium if already paid, nor the
insurer to recover back the loss if he has im
providently paid it:|| the vessel too is tainted
with the illegal destination of the cargo, and
the policies on both are equally void.lT The
parties having mutually sought a situation
which defies the provisions of the law, a situa
tion which is to be maintained independently
of its sanctions, cannot under any circumstan
ces demand it? aid. It matters not whether
tile illegality be subsisting or expected.—
If the voyage be undertaken be
fore the actual prohibition is in force, but
with the chance of enforcement before its ter
mination, and such enforcement takes place,
*lb. p. 4G4.
f Phillips v. Ives. Sup. Court, Dec. Term
1828.
fl Car. and Payne G3l. Egertowv. Furze
man. ’
§2 11. 81. 43. Brown vs. Leeson.
% Peters’ Rep. 185. M'Lanuhan v. the Univ.
Ins. Cos.
II 1 Peters’ C. C. Rep. 417. Craig v. the U. S.
Ins. Cos.
c 3 Wash. C. C. Ren. S7C- Gray v. Sims and
Bcthcli.
the promised indemnity is at an end. ft
was in cnc of the cases relied upon for the
positions now assumed, that Judge Washing
ton used this emphatic language: “The
underwriter promises to the insured an indem
nity against loss upon a traffic which the law
of his country may forbid; and whether it
should be forbidden or not, he engages to pro
tect a trade which is to be carried on in defi
ance of any law which may be passed to inter
dict it. And is this a contract which can
show its face in a court of justice, whose du
ty it is to enforce the laws of the country?”^*
i bus lur the rule is rigid and inexorable,
but it goes no further: it is confined to the
laws of the country where the contract is
made, and takes no necessary notice of tlio-e
abroad. An insurance may be made here on
a voyage expressly undertaken in violation
of foreign revenue iaws, provided it be known
to the underwriter that such is the design.
If he were not apprised of the real object he
would not be responsible for losses occasion
ed by any illicit trade unless the trading arose
from the barratry of the illicit mariners: that
risk, agreeably to the usual policies, being
expressly assumed, a loss inconsequence of it
must be borne by the insurers, according to a
decision Chief Justice Tilghman § although
the more immediate cause was illicit or pro
hibited trade. Courts of justice and elemen-'
tary writers have regretted than any sanction
should be afforded to the breach of law which
attends smuggling Voyogcs and the possible
results of subterfuge, and misrepresentation
and perjury which may ensue. It would per
haps, be more conformable to the high and ho
nourable principles which lie at the root of
die system, if policies were absolutely restric
ted to regular and legal trade. One at least
of the distinguished French treatises (that of
Pothier*) refuses the sanction of its authority
to a different rulc:but the doctrine is too firmlv
established on the continent, in England, and
here, to leave it the subject of a doubt.ft
Our policies usually contain a warranty a
gainst seizure for illegal trade ; and this, ma
king the law for the occasion by special con
tract obviates all di (Acuity when actual seizure*
takes place on that account. When the trade 1
is to be carried on by smuggling, and the los*
arises from a different cause, a policy which*
contains the clause referred to might still be:
enforced: the warranty is against seizure, not.
against the existence of illegal trade. Let;
it not, however, be supposed that commerce
is so exposed, and yet so little susceptible of*
protection, that it can be destroyed withorft
in lemnity by the arbitrary, capricious atl uh*
just attacks of foreign governments, under tfi®
pretext that it is contrary to their laws. Chief
Justice Tilghman has wisely observed,!) that
to bringacase within the warranty thererrj. ut
be soiz r an illicit or both prohibited trade'
It must lie proved that there was a prohibition,
and that the case is within it; ami it must be a
legal prohibition, such as the prohibiting pow
er had a right to make. Th£re was a time
when all foreign corfimcrce was prohibited to
the United States: England prohibited all
trade to the ports of France or her allies, and
Franco prohibited all trade to England or her
colonies: they divided the world between
them. But it. was never supposed that these
prohibitions discharged the underwriters from
loss by capture at sea for breach of them.”—
In another case the late deeply learned Jus
tice Duncan that uothieg can be
more established than this—that if the
ground of the decision be a foreign ordinance
manifestly unjust and contrary to the law of
nations, and the insured has only infringed
such partial laws, this shall not bo deemed a
breach of his warranty so as to discharge the
indemnity.”
•Ib.p. 270.
f 2 Bin. 574 Wilcoeke.
tTraite do Ass. N. 58.-
Valin. 2. 127, Doug. 238. Pioirch vs Hotelier,
0 Map. 102. Richardson vs Maine Ins. Cos. 3
Mason 18. Andrews v. Essex Ac. Ins. Cos. &e.
II 3 S. and R. 82 Smith vs the Del. Ins. Cos.
T 4 S. and R 6p. Funded v. the Phenix Ins. Cos.
BTitON.
Misfortune stamped him for her own at hi
birth ; and no equivocal sign, a termagant and
libertine were his cradle watchers. He ha I
no “monitor of his young y eat s.” His youth
| was blasted in its spring; and (true, indeed,
like many who have built themselves monu-'
inents in the bosoms of men) he, who could
move all hearts with sympathy, was unable to
touch the one of liis choice with love. He
lived—
. “as lives a withered bough,
Blossomless, leafless, and a lone.”
lie died —he, the man upon whom the eyes
of the world were fixed with admiration, if
not with favour, died in a cheerless barrack
room, without a friend or relative to minister
to him; his last moments disturbed by the
clamours of a mutinous soldiery, and his eyes’
closed by a menial. Nay, more, his very re
mains cannot escape contumely. His ashes
are excluded from a public cemetery y hi
countrymen; and there arc those found inti.i
land which he delighted to honor, who would
brand lii name with fiifamy ? If such ar<
the penalties of frailty and indiscretion, what
ignominy is reserved for actual crime ? •
The London Morning Chronicle says-;
Peyrennet and Polignac have had serious -hi
fcrences since iheir imprisonment in the lor
tress at Ilam, and on one occasion, as appear *
from a privati concsp >n</ence, the infuriati -
lawyer throw a eandlesti ck at the head of fh©
Prince, which fortunately missbd him. The
Prince has petitioned the Government of
France that he may be. sr. vv*jated from bis coo *
nan on.” . . 4
NO. 2.