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Catlett and Keith r. Pacific Insurance Company.

sufficient, the plaintiffs introduced the following evidence, subject to exceptions :

The policy, and invoice of the cargo.

A copy of the register of the vessel, certified by Joseph Nourse, Register of the Treasury of the United States, to be a true copy of the original register on file, in the registryoffice, which certificate was duly authenticated by the Secretary of the Treasury.

The deposition of Peyton R. Page, the master of the vessel, taken under the act of Congress He testified that the cargo of the vessel, when she sailed from Alexandria, on the 31st of March, 1818, consisted of twenty-two kegs and seventeen boxes, containing 90,000 Spanish milled dollars, and of twenty-four barrels of ginseng. That on the 5th of April, the brig met with an injury in the Potomac, which it took until the 11th of April to repair. Proceeding on her voyage, she had bad weather, which caused the vessel to labour and strain very much, and the oakum worked out of her seams next the copper, in consequence of which she leaked considerably, and it was thought advisable to bear away for Madeira to repair. There she was calked, and on the 16th of May, proceeded on her voyage. From the 20th of June to the 16th of July, they had very heavy weather, and rough seas, the vessel labouring and leaking badly. On the 16th day of July, she encountered one of the heaviest gales of wind the deponent ever knew, and was so much strained, that the next day she made three feet water in fifteen minutes, and all the pumps kept her free with difficulty. The seams on the larboard side were open abreast and abast the mainmast, the length of five feet. The stone ballast, guns, and spare spars were thrown overboard. The vessel worked in a frightful degree, so that the decks and beams were constantly in motion. The weather moderating on the 21st, the crew covered the seams with canvass, which diminished the leak, but

Catlett and Keith v. Pacific Insurance Company.

the brig continued to work as if going to pieces. All hands were unanimous for making for the first port, and on the 29th of July, they arrived at the Isle of France. A survey was held on the 31st of July, and the cargo having been landed by order of the surveyors, they again went on board on the 14th of August, and had the brig opened in various places, when it was found, deponent being present and seeing it, that eight of her puttocks were broken on her larboard side, and two or three on her starboard side. And the said surveyors reported, that the said brig could be repaired, but that it would cost to repair her there, as much as 20,000 dollars ; upon which report, and upon the request of deponent, the Court of Vice-Admiralty, in the Isle of France, ordered the said brig to be sold, and she was sold accordingly. There was no opportunity to send on the cargo to Canton. Annexed to Paige's deposition were the bill of lading, his letter of instructions, and the letter of instructions to Thomas R. Keith, the supercargo.

The bill of lading purported that 90,000 Spanish milled dollars, marked and numbered in the margin, 22 kegs, 17 boxes, were shipped on board the Sphinx, by Charles I. Catlett, James Keith, jr., and Thomas R. Keith; to be delivered at Canton, to Thomas R. Keith, supercargo, on board, or his assigns. On the bill was the following endorsement : 45,000—say forty-five thousand dollars, the property of

James Keith, jr., and Thomas R. Keith. 45,000-say forty-five thousand dollars, the property of

Charles I. Catlett. $90,000

The letter of instructions to Captain Page, which contained all his instructions, was as follows :

Catlett and Keith v. Pacific Insurance Company.

Alexandria, March 28, 1818.. Capt. Peyton R. Page,

Dear sir-You will please take command of the brig Sphinx, and proceed from hence to Canton, in China, where you will deliver your cargo to Mr. Thomas R. Keith, supercargo on board. Mr. Keith will furnish you with a return cargo, with which you will please proceed from Canton, with all possible despatch, direct to this port, guarding against any deviation that might affect our insurance ; and we wish you to be very particular to conform to the laws and customs of China.Wishing you a pleasant voyage, we remain your friends and servants,

CHARLES I. CATLETT,
JAMES KEITA, jr.

The letter of instructions to Thomas R. Keith, the supercargo, was as follows :

Alexandria, March 26, 1818. Mr. Thomas R. Keith,

Dear sir-We have shipped on board brig Sphinx, Peyton R. Page, master, ninety thousand Spanish dollars, to your address, which we wish you to invest on your arrival at Canton, in the articles named in the annexed memorandum. If our money should not be sufficient to load the brig back, you are at liberty to negotiate a credit in Canton, for a sum not exceeding thirty thousand dollars; and for this object we hand you a power of attorney, and letters from our highly respectable friends, Messrs. James and Thomas H. Perkins, of Boston, and Le Roy, Bayard, & Co., of New-York, which, we trust, will enable you to obtain a credit on the most favourable terms. As a compensation for your services, we agree to allow you three per cent. commission. Relying upon your best exertions to promote our interest, and wishing you a pleasant voyage, we remain your friends and servants,

CHARLES I. CATLETT,
James Keith, jr.

Catlett and Keith v. Pacific Insurance Company.

P.S.- March, 28th, 1818.-If you cannot obtain freight, and find it necessary to fill up the brig, and can obtain credit upon such terms as you think favourable, you are at liberty to take a credit of sixty thousand dollars, instead of thirty thousand. Be careful to be placed upon the most favourable footing, as we shall be very careful to promptly comply with your engagements. Yours truly,

CAARLES I. CATLETT,
JAMES KEITH, jr.

The plaintiffs also gave Thomas R. Keith the following letter of attorney :

Know all men by these presents, that we, Charles I. Catlett and James Keith, jr., of Alexandria, District of Columbia, have nominated and appointed, and by these presents, do nominate and appoint Thomas R. Keith, our agent and attorney, to transact our business in Canton. Also, to negotiate a loan, or purchase merchandise on a credit, hereby binding ourselves and our heirs to comply with all contracts made for our account in Cantor, by said agent and attorney. Given under our hands and seals, the 28th day of March, 1818. Sealed, &c. in the pre

CHARLES I. CATLETT, sence of A. Moore. S JAMES KEITA, jr.

It appeared from this deposition, that after the vessel was condemned, Captain Page delivered the dollars to Mr. Bickham, the American Consul at the Isle of France, and the agent of Thomas R. Keith. He was selected by Page and Keith as the safest person they could get to take charge of it. Captain Page considering Keith as a part owner, thought himself justified in delivering the same to his agent, believing it to be the best course he could pursue for those who might be interested in the cargo. Not wishing to create any expense to the owners, in relation to himself, he engaged as

Catlett and Keith v. Pacific Insurance Company.

a mate on board a ship, and lest the Isle of France. What became of the dollars he did not know, but had understood that they were laid out in cotton at that place.

A copy of the proceedings, and condemnation of the vessel, in the Court of Vice-Admiralty, at the Isle of France, with a certificate of the American Consul to authenticate it, was of- .. fered in evidence, without any other proof of its authenticity. The impression on the seal of the Court was effaced.

The plaintiffs offered the following evidence, (besides the invoice, bill of lading and endorsement,) in relation to their interest in the policy :

Charles I. Catlett and James Keith, jr., each furnished a moiety of the 90,000 dollars, separately. After it was shipped, and between the 20th and last of February, James Keith, jr., declared in the presence of Page and Catlett, that he had given to his brother, Thomas R. Keith, one-third of his interest in the shipment, and that he was to have one-third of the profits. James Keith, jr., observed that he presumed it would be an insurable interest, and Catlett agreeing with him said, that as they were short_insured, he would write to Thomas H. Perkins, of Boston, to effect further insurance, and that Thomas R. Keith's interest should be insured in the Boston policy. Page believed that Thomas R. Keith had no interest in the shipment until about the time of this conversation. On the 4th of February, Perit & Cabot, of Philadelphia, gave Thomas R. Keith a letter to Messrs. Perkins & Co., introducing him as the supercargo of the Sphinx, belonging to the plaintiffs.

The letters to Le Roy, Bayard, & Co., and to Thomas H. Perkins, directing the insurance to be made, were as follows :

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