as other days of the week? In R. v. Wrington, it appeared from the circumstances that Sundays were excluded. But it is said, that the services cannot be joined, because they were not ejusdem generis. I really know not what that means, nor where the line is to be drawn. Suppose a postillion were made coachman; would those be deemed services ejusdem generis? It is said, that he was first an outdoor servant, and then a family servant: but I do not know what difference that made in his services. Upon the whole, I cannot do better than adopt what the justices below have done they have determined that there was a continuing service for a year and a hiring for a year, and that he gained a settlement; and I think they are warranted by the authorities in that conclusion.

GROSE, J. First, it is objected, that the servant was not under the control of the master his whole year. Secondly, that the services were not ejusdem generis, and therefore cannot be joined. As to the first, it is said that Sundays were not included in the weekly hiring. But why not? The hiring was by the week, and nothing was said about Sunday; and he did whatever his master bid him do on that day. What are we to collect from thence, but that the parties considered that Sunday was included; and the justices have by their order found that it was. Then secondly as to the services not being ejusdem generis ; under both contracts the pauper was a servant in husbandry, only boarding in the one case out of the master's house, and in the other boarding in it. Then what is this but the same sort of service throughout. LAWRENCE, J. assented.

LE BLANC, J. I cannot see upon the facts stated, that the service under the one hiring was of a different nature from that under the other.

Order confirmed.

Miller v. Newbald.

1 East, 662. June 22, 1801.

A writ of error allowed is a supersedeas in law to all further proceedings in the conrt below: and therefore proceedings were set aside with costs for irregularity where the ca. sn. being returnable on a day after the allowance of the writ of error, was returned after notice of such allowance on the same day; and sci fa. afterwards taken out ogainst a bail.

THIS was a rule calling on the plaintiff to shew cause why the proceedings against the bail in this cause since the service of the allowance of the writ of error should not be set aside for irregularity with costs. The plaintiff obtained final judgment in Easter term last. A writ of error was sued out on the 2d, and allowed on the 3d of June. The capias ad satisfaciendum was returnable on the 5th of June, and about 4 o'clock in the afternoon of the same day, the allowance of the writ of error was served; after which the ca. sa. was returned, and a scire facias sued out against the bail. This was moved by

Yates, on the ground that the allowance of the writ of error operated as a supersedeas, and therefore the execution executed afterwards was irregular.

Wigley shewed cause, admitting the general rule, but alleging that there was reason to be satisfied in this case that the writ of error was merely for delay, in which case the Court would not set aside the proceedings. And he cited Kempland v. Macauley and another, 4 Term. Rep. 436, where the Court refused to set aside an execution for the costs of a nonsuit sued out after notice of the allowance of a writ of error; because it could only be for delay in that case. That shews that the allowance of the writ of error is not an absolute supersedeas to the proceedings in this Court. But by Lord KENYON, C. J. A writ of error allowed is in point of law a supersedeas.

There is a case to that purpose in Lord C. J. Willes's Reports, Merri

ton v. Stevens, Willes, 271, determined upon great deliberation. We have indeed refused in some cases to help the party by whom it had been taken out merely for delay, if it expressly so appeared, considering him in the nature of a delinquent. But nothing of that sort appears here.

Per Curiam,

Rule absolute.

Price and Another v. Bell.

1 East, 663. June 22, 1801.

An assured upon an American ship aud cargo, provided with such a passport as is required by the treaty between America and France, and with all other usual American papers and documents, is entitled to recover against an underwriter of a policy on such ship and goods in case of a capture by a French privateer, notwithstanding a sentence of condemnation of the same as lawful prize by a French court of admiralty; such sentence proceeding on the ground of a breach of French ordinances requiring certain particulars to be observed in respect of the ship documents beyond what was necessary by the treaty. Qu. Whether if a ship be not warranted of any particular country, there be an implied warranty in a policy of assurance that he shall be properly documented according to the laws of that country, and her particular treaties with foreign states.

THIS was an action upon a policy of insurance on ship and goods from London to Charlestown; with liberty for the ship in that voyage to proceed and sail to and touch and stay at any ports or places whatsoever; and the plaintiffs declared as upon a loss by capture in the course of the voyage on the 28th of December 1797. At the trial before Lord Kenyon, C. J. at Guildhall, a special verdict was found, which stated in substance as follows:

66

66

The plaintiffs, on the 22d of November 1797, caused the policy in question to be effected, which was underwritten by the defendant. The ship was an American ship belonging to the plaintiffs, but no warranty respecting that circumstance was made to the defendant, or to any other of the insurers on the same policy. On the 30th of January 1797, the ship, being about to proceed from Charlestown on a voyage to the Havannah, obtained at Charlestown three passports or sea-letters in the English, French and Dutch languages, the same as are constantly made use of by all American ships, and respectively signed by the President of the United States in the following form(a): "George Washington, President, &c. To all, &c. Be it known, that permission has been granted to A. R. commander of the ship South Carolina of Charles"town, of the burthen of 250 tons being at present in the port of Charlestown, "and bound for Havannah, loaded with salt, &c. that after this ship has been "visited and before his departure, he shall make oath before the officers au"thorised for this purpose, that the said ship belongs to one or more citizens 'of the U. S. of A.; the act whereof shall be placed at the foot of these pre"sents; and in like manner that he will keep and cause to be kept by his "crew the maritime ordinances and regulations; and enter a list signed and "confirmed by witnesses, containing the names and surnames, the places of "birth and residence, of the persons composing the crew of his ship, and of "all those who shall embark therein, &c.; and in every port or harbour which "he shall enter with his ship, he shall shew the present permission to the officers authorised thereto, and make a faithful report of what has passed dur"ing his voyage; and he shall carry the colours, arms, and ensigns of the U. "S. during his said voyage. In testimony whereof," &c. Sealed with the seal of the U. S., and countersigned by the collector of the customs of Charlestown, and dated 30th of January 1797.

66

The ship afterwards sailed from Charlestown to the Havannah with the aforesaid passports, and returned therewith to Charlestown in the beginning of

(a) Only the French translation is here given, as that on which the argument principally turned at the bar.

May in the year 1797, when the captain deposited the passports together with the other ship's papers at the custom-house there; and on the 27th of the same May, being about to sail again in the said ship upon a voyage from Charlestown to the Havannah, and from thence to London, he received back from the deputy collector of the customs the said passports, with an indorsement made by the said deputy collector thereon, as follows: District and port of Charlestown, May 27th, 1797. These are to certify to all whom they may concern, that Andrew Robertson, master of the ship South Carolina, has this day cleared for the Havannah, laden with sundry articles of merchandize, consisting of oil, dry goods, and tallow. Given under my hand and seal of office at Charlestown the day and year above written. (Signed) W. W. Dep. Collector." The captain at the same time took and made entry of all such other documents and papers as are usually taken or made entry of by captains of American ships. On the 1st of June 1797, the ship sailed upon the said voyage from Charlestown to the Havannah and London, and arrived in the river Thames in September 1797; and after her arrival there took on board the goods insured. And the captain having been obliged by the death of several of the crew to take others on board, all of whom were American subjects, procured a new muster-roll upon oath made before the Lord Mayor of London, and signed and certified by the American minister, having left the original muster-roll with the said minister. Afterwards, on the 11th December 1797, the ship sailed on the voyage insured from London to Charlestown; and on the 28th of the same month, was captured by a French privateer and carried into L'Orient. The ship at the time of her sailing upon the voyage insured, and from thence until and at the time of her said capture, had on board, together with all other usual papers and documents, the abovementioned passports so indorsed as aforesaid, and also the said muster-roll so signed as aforesaid; which were exhibited to the captain of the said privateer. Proceedings were instituted against the ship before the tribunal of commerce at L'Orient, by which the following sentence of condemnation (a) was pronounced, dated the 14th Pulviose, 6th year of the French republic. The ship South Carolina, commanded by A. R., was she attacked, &c. as a prize under English colours? Was captain R. at his departure from Charlestown provided with a list of the crew in the form required by the French laws and regulations? At the time of the capture was the list of the crew taken away which the captain declared that he had taken at London, to replace his first list? Had that list, supposing it to exist, the legal form to supply the first list? Do the bills of lading and other papers touching the cargo prove the neutral property of it? Considering in fact, that there is no proof that the privateer Le Patriot stopped the South Carolina under English colours; that Captain R. does not prove that he was provided with a list of the crew attested by the public officers of Charlestown; that it appears that the captain did really get a fresh list of the crew from the ambassador of the United States at London, and that he has not proved that this document was delivered to the captors, and that there is no proof of the pretended concealment of it: considering in law, that the register and sea-letter prove the American property of the ship; but that the log-book proves that the said passport dated the 30th January, 1797, has served for several voyages contrary to the formal regulations of the 4th article of the ordinance of the 28th July 1778, thus expressed; "A passport can serve but for one voyage only," &c. That admitting the existence of the list of the crew obtained in London, it would be insufficient to answer the intentions of the said ordinance, which sets forth, article 9th, "all foreign vessels shall be good prize, on board whereof there is a merchant, super-cargo, &c. of a country, enemy of his majesty, or whereof the crew shall

(a) The sentence was set out at length in the special verdict, but the substance only is here stated. VOL. I.

41

be composed of more than one-third of sailors, subjects of states enemies of his majesty, or which shall not have on board the list of the crew attested by the public officers of the neutral places from whence the vessels took their departure." Considering that neither the bills of lading establish the neutrality of the goods, and that the declarations of the shippers made before the mayor of London, made for that purpose, and by him certified on the back of them, cannot answer the regulations of the 2d article of the ordinance, which expresses, &c. (setting forth another French ordinance.) Considering that the decree of the Executive Directory of the 12th Ventose, 5th year, promulgates to the Americans the ordinances of 1774 and 1778, relating to the navigation of neutral vessels, &c. Therefore, the ship South Carolina and her cargo was declared good prize. From this sentence Captain R. appealed, and the court of appeal on the 4th Floreal, 6th year, &c. pronounced the following sentence(a). Questions. Is the capture of the ship &c. valid? Is the sentence of the tribunal of L'Orient, &c. agreeable to law and the ordinances of France? Is the demand of Captain R. to be allowed to prove the list of the crew, declared to have been made at London, and withheld from him, admissible? Reasons. Seeing that the former sentence is supported by the maritime laws and ordinances established in matters of prize; that the 4th article of the ordinance of the 26th of July 1778 expresses, "that a passport can serve but for one voyage ;" and that it is evident by the log-book, that the ship South Carolina has made several voyages with the passport which was granted her on the 30th January 1797: that the 18 bills of lading do not exhibit any mark of neutrality of the goods, and that the certificate affixed thereto does not satisfy the second article of the same ordinance, which expresses, &c. (as before): that these bills of lading do not declare the neutrality of the goods that the tribunal of L'Orient has pronounced on the supposition of the existence of the pretended list of the crew taken at London by Captain R., which does not prevent applying to him the articles of 9th, 12th, and 9th of the ordinances of 1704, 1744, and 1778, and which renders useless his demand of proof respecting this list. Considering if all these provisions are not sufficient of themselves to establish the former sentence, the law of the 22d Nivose last declaring, that the neutrality of ships shall be determined by their cargo, the ship S. C. is within the scope of this law, as her cargo is entirely of goods of English manufacture, &c. Considering the fourth article of the ordinance of the 26th of July 1778, expressing, "A passport can serve but for one voyage only." The 9th, 12th, and 9th articles of the ordinances of 1704, 1744, and 1778, which enacts, &c. (as before). Considering the law of the 29th Nivose last, expressing, article 1st," the state of ships in regard to what concerns their neutral or enemy's quality shall be determined by their cargo; therefore, every vessel met at sea laden entirely or in part with goods the produce of England, shall be declared lawful prize, whoever may be the owner. The tribunal declares the former sentence valid, &c. The special verdict then set out the several French ordinances above referred to. It then stated, that a treaty was concluded on the 6th of February 1778 between France and the United States, containing (inter al.) the following articles and form of passport. Article 12. The merchants' ships of either of the parties which shall be making into a port belonging to the enemy of the other ally, and concerning whose voyage and cargo there shall be just grounds of suspicion, shall be obliged to exhibit as well on the high seas, &c. not only their passports, but likewise certificates, expressly shewing that their goods are not prohibited as contraband. Article 25. To the end that all dissensions may be avoided, it is agreed, that in case either of the parties should be at war, the ships belonging to the subjects of the other ally must be furnished with sea letters or passports, expressing the

(a) The substance only is preserved.

name, property, and bulk of the ship, as also the name and place of habitation of the master or commander of the said ship, that it may appear thereby that the ship really and truly belongs to the subjects of one of the parties; which passport shall be made out according to the form annexed to this treaty. They shall likewise be recalled every year, that is, if the ship happens to return home within the space of a year. It is likewise agreed, that every such ship being laden is to be provided not only with passports as above mentioned, but also with certificates, containing the particulars of the cargo, the place whence she sailed, and whither bound, that it may be known whether any contraband goods be on board; which certificate shall be made out by the officers of the place whence the ship set sail in the accustomed form; and if any one shall think it fit to express in the said certificate the person to whom the cargo belongs, he may do so. Article 27th. If the ships of the said subjects of either of the parties shall be met with on the high seas, &c. by any ship of war or privateer of the other, the said ship of war, &c. for avoiding any disorder, shall remain out of cannon shot, and may send their boats on board the merchant ship, and board her to the number of two or three men only, to whom the master of such ship shall exhibit his passport concerning the property of the ship made out according to the form inserted in this present treaty; after which the ship shall be at liberty to pursue her voyage without molestation or search, &c. It then stated the form of the passport; which was the same as that used, only leaving blanks for the names of the captain and ship, and to the places to which she belonged, and where she then lay, and the amount of her tonnage, and where bound, and with what laden, and for the date. It then set forth the decree of the 12th Ventose, 6th year, &c. referred to in the above sentences; which decree refers to the treaty, article 4th; "Agreeable to the law of the 14th of February 1793, the directions and regulations of the 21st October 1744, and 26th July 1778, concerning the manner of proving the property of neutral ships and goods, shall be executed according to their form and tenor; consequently, every American ship shall be good prize which shall not have on board a muster-roll of the crew in due form, such as is prescribed by the model annexed to the treaty of the 6th February 1778, the execution whereof is ordered by the 25th and 27th articles of the said treaty." The special verdict then set forth a law of the United States, dated 1st of June 1796, whereby the form of the passport was prescribed and a penalty of 200 dollars imposed on every captain of an American vessel bound to any foreign country without such passport. It then stated notice to the defendant of the premises, and a demand and refusal to pay the loss. .

This case was first argued in Easter term 40 Geo. 3., by Giles for the plaintiff, and Carr for the defendant; and again in Trinity term following, by Adam for the plaintiff, and Perceval (now Solicitor General) for the defendant; and a third in Michaelmas term last, by Gibbs for the plaintiff, and Erskine for the defendant. Much of the argument turned upon the construction of the sentences of condemnation, the French ordinances, and the treaty between America and France, which is either altogether omitted or very briefly advered to. The matter first came on in the shape of a case reserved from the Sittings; but after the second argument it was turned into a special verdict by the desire of the Court, who thought the question raised upon the implied warranty of great magnitude.

On the part of the plaintiff it was contended, 1st, that the sentences of condemnation proceeded altogether upon the breach af French ordinances, which carried the regulations concerning ship documents further than the treaty between France and America, by which alone the question must be governed. As to the muster-roll required by the French ordinances, it was decided in Pollard v. Bell, 8 Term Rep. 434, and Bird v. Appleton, Ib. 562, not to be binding upon a foreign independent nation, nor necessary in order to legal