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![handle is hein.slavery/ssactsengr0009 and id is 1 raw text is: DOE V. MARTIN
incumbent on the plaintiff to prove? [38] He must prove the subscription of the
underwriter, his own interest in the goods, his shipping them on board the vessel
described in the policy, and the loss of them in consequence of such an act by the
captain as amounts to barratry; that is, that he went out of the course of his
voyage for a fraudulent purpose. It was not incumbent on the plaintiff to prove
that the captain was not the owner, for that would be calling on him to prove
a negative; and if the captain were not the owner, it is immaterial who was.
Proof of that fact, which operates in discharge of the other party, lies upon him.
I agree that, if the captain had freighted the ship for the voyage, he could not be
guilty of barratry ; but the proof of such a fact lies equally on the defendant. It is
then asked, why it should not be presumed that the captain went out of his course
by the directions of his owner, if he had any? The reason is plain; because the
Court cannot presume fraud in another person. The case put of an indictment for
burglary, does not answer the purpose for which it was cited. For suppose the goods
were not actually taken and carried away, observe what would be sufficient to be
proved ; the fact of breaking and entering the house ; and whose house it was; and
that it was in the night; because all these circumstances are specifically alleged in
the indictment, and they are all affirmatives ; then the intent with which these facts
were done is equally material: but if the prosecutor prove all the former circum-
stances, it is a question for the jury to determine, whether he did not enter with the
view of stealing the goods, unless the party accused can shew to their satisfaction that
his intent was innocent. That brings me to the next question, which, in my opinion,
is the most material one here, namely, what was the view of the master when he sunk
his anchor at the mouth of the river Mississippi ? for if it were done with a fraudulent
view, I hold that the very sinking of his anchor was an act of barratry. His intent
in so doing was a question for the jury ; and they have found by their verdict, that
it was with the barratrous intention charged. It appears that he had some negroes
on board belonging to himself, which he wished to have disposed of at New Orleans ;
but finding upon going up thither in his boat, that he should not be able to do so, he
returned back again to his ship, and immediately sailed for another port. Then is it
too much to say, that he went to New Orleans for the purpose of his own private
advantage, and that the stopping the course of his ship was for a fraudulent purpose?
Does it not prove clearly that when he dropped [39] his anchor, he did not intend
going to New Orleans, unless it suited his own private advantage? The evidence,
too, to be collected from the letters, shews that he was considered as a thief and
criminal, and pursued as such; and that all the persons concerned treated him in
the character of master only.
Grose, J. of the same opinion.
Rule discharged.
DOE ON THE DEMISE OF WILLIS AND OTHERS against MARTIN AND OTHERS.
Friday, Nov. 19th, 1790. By a marriage-settlement lands were conveyed to
trustees to the use of the wife for life, remainder to the use of the husband for
life, remainder to the use of all and every the children of the marriage, or such
of them, and for such estates, &c. as the husband and wife should appoint; and
for want of such appointment, to the use of all and every the child or children,
equally, if more than one, as tenants in common ; and if but one, then to such
only child, his or her heirs or assigns for ever; remainder over; in the deed was
contained a power enabling the settlers to revoke the uses of the settlement, and
the trustees to sell the estate, and convey it to a purchaser, so as the purchase-
money should be paid to the trustees (and not the settlers) and invested in the
purchase of other lands to the same uses; it was held, that the remainder to the
children was a vested remainder in fee in each child when born, liable, however,
to be divested by an appointment by the parents ; and consequently (no appoint-
ment having been made) that the remainder to the children could not be defeated
by a deed of revocation by the parents and a conveyance by them and the trustees
to a purchase, who paid the consideration-money to the settlers (not to the
trustees) which was never laid out in the purchase of any other lands. That
power of revocation was conditional ; and as the conditions, namely, the payment
of the money to the trustees, and the settling of other estates to the same uses,
were not performed, the deed of revocation was a nullity.-Fraud will vitiate
4 T. IL 38.](ViewImageLocal?handle=hein.slavery/ssactsengr0009&div=1&collection=&method=preview&ext=.png&size=3)