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mere nullity. A vessel was captured with a license, purporting to be dated on the 8th of October, but it appeared, from an affidavit brought in by the claimant, that the license. had been granted on the 8th of September. It was said, that, although there might have been a fraudulent alteration in the date of the license, yet the holders, who were entirely ignorant of the alteration, and who purchased the license at a large price in market overt, ought not to be the sufferers. But there are many cases, in which it is unavoidable, that an innocent man should suffer for the fraud of others. If I take adulterated money, it is every day's experience, that I suffer for it by loss, though no party to the fraud. In such a case, it is not possible to produce sufficient evidence to satisfy the Court, that the alteration of the date might not be the act of the party himself, by whom the benefit of the license is claimed. It is not necessary to infer fraud in the particular case, for the Court must, for the sake of guarding against fraudulent acts of this kind, adhere to the general rule; that the party claiming the benefit of the license must shew a license unimpeached. If any other rule were to prevail, the consequence would be, that a door would be opened for the indefinite extension of licenses; for they might be prolonged at will, not only by the hostile government itself, but by every person resident in the enemy's country (v). Where a license was granted to a Dutch ship to go to a Dutch colony, then in British possession, but intended to be restored to the Batavian Republic, under the treaty of peace then in contemplation; it was held, that it would not extend to the protection of the vessel in the event of a new war breaking out after the conclusion of the definitive treaty of peace. Whilst the island was in British possession, it was an indulgence to allow Dutch vessels to sail with this destination, on which they could not have ventured without the special protection of a

(v) The Louise Charlotte, 1 Dod. 308.

license. The license was granted during the pendency of the negociation, whilst it was uncertain, whether hostilities might not be renewed, and whilst it was probable that the cruisers, then in commission, might retain their legal authority to seize; and therefore its terms are to be referred to the state of affairs then existing. Peace having been concluded, this license was necessarily done away and destroyed, having no subject-matter to act upon. At the time of seizure, therefore, this vessel was to be considered on the ordinary footing of other Dutch ships (w). Where there is clearly an absence of all fraud, and of all discoverable inducement to fraud, the Court will go the utmost length that fair judicial discretion will warrant, though there may, under such circumstances, have been a considerable failure in the literal execution of the terms of the license. Where a license expired on the 15th of May, and the ship did not sail till the 29th of June, and was captured on the same day; but it was averred, that the delay had arisen from an embargo imposed by the enemy, and no fraud was proved or suggested; restitution was decreed. It was argued, that some fraud or other must be presumed from the length of time that had elapsed after the expiration of the license; but the Court held, the natural presumption to be, that the party would not countenance an unnecessary delay, which must be contrary to his own direct interest. furnishes a strong ground to suppose that it was by accident, that the ship was prevented from completing her voyage within the time expressed by the license. If it could be shewn that the license had been used before, and that the delay arose from its previous use, or that there was any other fraudulent purpose to be answered, the Court would call for more particular explanations; but as no fraudulent motive had been pointed out, it must suppose, that the party was not dilatory in furthering the completion of his own mercantile adventure;

(w) The Planters Wensch, 5 Rob. 22.

This

and looking to the probability of the fact arising from the local circumstances of the country in which the transaction originated, and the conduct of the enemy's government at that particular period; it did not even require further proof of the existence of an embargo (z). So, where a vessel, on her arrival, was placed under embargo, and the cargo which had been ordered, and was ready to be put on board, was warehoused, until the embargo was taken off, and was then shipped long after the expiration of the license; the ship and cargo were restored, although the government had ceased to grant licenses of that particular description. Where a party has, through his own laches, suffered his license to expire, he has no right, after government has changed its policy, to call upon the Court to give it new life. But where a license has been fairly acted upon, as far as the party was enabled to proceed, the Court is not called upon to put the transaction in motion, but to protect its progress; and such a case is fairly entitled to that protection which it would have derived from the license, at the time when it was put in operation and was impeded by extraneous circumstances. This is no novel principle; it is the application of the common and known rule of law nunc pro tunc. The Court will accept that as done now, which would have been done before, but for insurmountable difficulties. When the Court is satisfied of the identity of the transaction, and that all fair diligence has been used in order to its completion within the time prescribed, it will look no further. It will not call for the production of unnecessary and expensive proof (y). Where the party has used his best endeavours to fulfil his engagement, and has been prevented from finishing the transaction in due time, by the violence of the enemy, the Court will decree restitution, though the government may have refused to renew the license. The refusal of the government leaves the princi

(r) The Goede Hoop, Edw. 327.
(y) The Johan Pieter, Edw. 354.

ple, upon which the Court is in the habit of acting, untouched; and, therefore, where the delay arose solely by the restraint imposed by the enemy, the property was restored (z). The indulgence extended to cases of expired licenses, embraces the difficulty of procuring ships, and all other insurmountable impediments, of whatever description; and the Court will not call upon the parties to negative an imputation of having used the license before, where there is nothing to raise a suspicion of such an abuse (a). Where, from the difficulty of procuring shipping, the license had expired, but the vessel had been despatched with a cargo in the expectation of procuring a fresh license, which had been actually granted and forwarded for the protection of the ship before its capture; restitution was decreed (b). Where a vessel, having arrived and delivered its cargo in this country, after the expiration of the license, was, upon this ground, captured on its return voyage; it was held, that if there had been any improper delay in the earlier part of the voyage, it was effectually purged by the arrival of the ship, and the delivery of its cargo. The vessel was restored, and the captors' expenses refused (c).

(z) The Eolus, 1 Dod. 300.

(a) The Sarah Maria, Edw. 361.
(b) The Carl, Edw. 339.

(c) The Freundschaft, 1 Dod. 316.

270

CHAPTER VII.

OF RANSOM.

RANSOMS are contracts entered into at sea, whereby a captain engages for the release and safe conduct of the captured vessel, in consideration of a sum of money, which the master of the captured vessel, on behalf of himself and the owners of his ship and cargo, engages to pay and for the payment of which he delivers a hostage as a security (a). The contract is drawn up in two parts; of which the captor has one, which is called the ransom bill; the master of the captured vessel has the other, which operates as his safe conduct (b). The regulations of the French ordinances require, that the safe conduct to the ransomed vessel should be granted only for its return to its own port, unless the vessel be nearer to its port of destination. There are some other cases in which a passport may be granted to allow the vessel to continue its voyage. By the ordinance of 1692 it is provided, that a safe-conduct can only be granted for the time that is absolutely required for the vessel to reach its port. The ordinance of 1716 provides, that it shall not be granted for a longer time than six weeks (c). The port to which the ransomed vessel is bound to return must be expressly mentioned in the safe-conduct (d). The same ordinance required the captor to take as hostages one or two of the principal officers

(a) Pothier, Tr. de Prop. i. 2, iv. § 127; et vide 4 Rob. 402.
(b) Valin Tr. xi. 2, iii; Pothier, ibid. §§ 129, 130.

(c) Ibid.

(d) Pothier, ibid. § 131.

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