Wilson against Marryat
| Jurisdiction | England & Wales |
| Judgment Date | 21 November 1798 |
| Date | 21 November 1798 |
| Court | Court of the King's Bench |
English Reports Citation: 101 E.R. 1250
IN THE COURT OF KING'S BENCH.
1 B. & P. 450. Post, 565. 3 B. & P. 201. 6 Rob. Ad. Rep. 346. 4 Taunt. 856.
Referred to, Croker v. Hertford, 1844, 4 Moo. P. C. 361.
wilson against marryat. Wednesday, Nov. 21st, 1798. Under the late treaty between this country and the United States of America, it is not necessary that the trade from America to our settlements in the East Indies should be direct; it may be carried on circuitously by the way of Europe. A natural-born subject of this country may also be a citizen of America for the purposes of commerce, and entitled to all the advantages of an American under this treaty; the circumstance of his coming over here for a temporary purpose does not deprive him of those advantages. If there be any illegality in the commencement of an integral voyage, and an insurance be effected on the latter part of the voyage, which taken by itself would be legal, still the assured cannot recover on the policy. [1 B. & P. 450. Post, 565. 3B. & P. 201. 6 Rob. Ad. Rep. 346. 4 Taunt. 856.] [Referred to, CroJcer v. Hertford, 1844, 4 Moo. P. C. 361.] The plaintiff declared on a policy of insurance made the 29th of February 1796, and averred to be for the use and benefit of one John Collet, upon the American ship " Argonaut" and cargo, " at and from Bourdeaux to Madeira and the East Indies, and back to America, with liberty to touch, stay, and trade at all ports and places wheresoever, on her outward and homeward bound voyage." The declaration then stated that the ship sailed from Bourdeaux, and -that in the course of the voyage insured, she was seized and detained by certain officers of the King; by means whereof she became lost to the said John Collet. The second count stated a loss by the perils of the sea. The third count was upon a policy made the 28th of May 1796, for the use of Collet, on the American ship " Argonaut" and goods " at and from Bordeaux to the East Indies, with liberty to touch, call, and [32] trade at all ports, places, or islands whatever, as well at the Cape as on this or on the other side of the Cape of G-ood Hope, until her arrival at her port of discharge in Bengal." This policy was by a memorandum declared to be on certain wines and brandies specified, warranted neutral; and this count stated a loss by the seizure and detain-ment of the King's officers in the course of the voyage insured. The fourth count stated the loss to be by the perils of the sea. The fifth count was on a policy dated the 15th of August 1796, effected on account of Collet and one Anthony Butler, on goods warranted American, on board the said ship "Argonaut" (American) "at and from Madeira to her last port of discharge in India, with liberty to touch, stay, and trade at all ports, places, and islands, whatsoever and wheresoever, as well at the Cape of Good Hope as on this or on the other side of it." This count stated the goods to have been shipped on board the "Argonaut" at Madeira on the 1st of June 1796, and a like seizure and detainment by the same persons in the course of the voyage insured. The sixth count stated the loss by the perils of the sea. There were also counts for money paid, and money had and received. The general breach assigned was non-payment. The defendant pleaded the general issue; and on the trial the jury found a special verdict; which, after stating the making of the policies as mentioned in the 1st, 3d, and 5th counts, and for the benefit of the parties therein named, set forth in substance as follows: The ship "Argonaut," on the 12th of June 1795, was purchased at Philadelphia in the United States of America, by John Collet and A. Butlej, who to the time of the loss hereinafter stated, continued owners thereof hi equal moieties. Collet, on the 25th of July 1795, sailed in the ship as master thereof, from Philadelphia, with a cargo of corn and flour for France, with a view of proceeding from thence with the ship after the disposal-of her cargo to Madeira and the East Indies, and from thence 8T.E.33. WILSON U MARRYAT 1251 back to the United States. Before the ship's departure from Philadelphia, Butler wrote to Collet this letter-"Having given you a power of attorney for the complete management of my half of the ship 'Argonaut,'her present cargo, and any others you may choose to put on board her, agreeably to your own judgment and will, the following observations are offered solely to assist your reflections, and lead you to procure that information which must be necessary to form a sound judgment how to act. For the employment of the 'Argonaut,' three plans occur as probable to be [33] accomplished, viz. First plan : After your arrival in France, to get a freight to the Isle of France, and go from thence to Bombay, and get a freight of cotton to Canton ; from Canton to take a freight back to the coast of Coromandel or Malabar, and, in short, to keep the ship employed in the country commerce until she has gained sufficient to make a complete investment in China for this country. Second plan: To go from France to London, and there obtain a freight for any of the Company's settlements in the East Indies, and from such settlement pursue the same plan of operations by country freight, or take a freight direct from Bengal for this country, or for Hamburgh, or other neutral ports. Third plan : To obtain a credit in London, and go out to Bombay or Bengal with a complete investment on our own accounts, to obtain a freight to China, and with that and the proceeds of the English investment to load at Canton for this country, or with the proceeds of the English investment to load-at Bengal for this country directly back, or for France." On the 1st of May 1796, Collet arrived with the ship at Brest in France, and there sold the flour which had been laden on board her in America, and afterwards proceeded to Bourdeaux in France, where he sold the remainder of the cargo ; and certain other goods being the same mentioned in the 3d count and American property, belonging .to Collet (the United States of America not being then at war with any of the belligerent powers) were there purchased and loaded on account of Collet on board the-ship, which, with the cargo, on the said 1st of May 1796, was in safety at Bourdeaux. The ship, from the time of her first sailing from America to the time of the loss, continued American. Whilst the ship remained at Bourdeaux, Collet came from thence to London, and having procured a credit with Wilson (the plaintiff) the latter under the direction of Collet, and during his stay in London, purchased upon commission within this kingdom with the monies, or upon the credit of him (Wilson) goods of British growth and manufacture on account of Collet and Butler, the same being the goods in the 5th count mentioned, and being the property of Collet and Butler, and Wilson, under . the like direction of Collet, and during his stay in London, caused the said goods to be shipped at London on the joint account and risk- of Collet and Butler on board three other American ships, in which they were conveyed from London to Madeira in the ò said policies in the 1st and 5th counts mentioned, for the purpose of being reshipped at Madeira into the ship "Argonaut," and of being carried therein, together with the goods so [34] shipped on board her at Bourdeaux from Madeira to the British territories in the East Indies, and of being imported into those territories and traded with there; and the value of the said last-mentioned goods still remains due from Butler and Collet to the plaintiff. The ship " Argonaut," on the 1st of May 1796, sailed from Bourdeaux with the goods so loaded on board her there to Madeira, in order to take on board her the goods so shipped from London; and having arrived at Madeira, took on board there as well those goods as certain Portugueze wines, for the purpose of proceeding with her whole cargo to the British territories in the East Indies, and of landing and trading with the same there; the said goods, &e. not being such, the importation whereof into the said territories was or is entirely prohibited ; and neither Collet nor the said ship having been licensed by the East India Company to sail or trade there. The " Argonaut " with her cargo having afterwards sailed from Madeira in the prosecution of her said voyage to the East Indies, in the course of such voyage, to wit, on the 2d of August 1796, at Symon's Bay, near the Cape of Good Hope, was with her cargo seized and detained by Sir G. K. Elphinstone, commander of a squadron of the King's ships of war, upon suspicion of being an illicit trader; by means whereof not only Collet's moiety of the ship and goods in the 3d count mentioned, were lost to him to the amount of the sum insured by him respectively thereon, but also the goods in the 5th count mentioned, were lost to Collet and Butler, who were interested therein to the amount within alleged. - , From the time of the ship's departure from Bourdeaux until and at the time of the seizure of the same, Collet was master thereof; and two British boys, whom Collet 1252 WILSON V. MARRY AT 8 T. R. 35. carried with him from London at the solicitation of their friends, were employed on board the ship during the voyage. Butler was a...
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