CH. 33. December 1782, the judge restored the ship to the claimants, Wolf & al., as the property of Danish subjects, and ordered the cargo to be unladen, reserving the consideration of freight, expenses, &c.; May 1783, the judge restored to the master &c., their adventures, and "gave the master his freight and expenses to the time of the first decree, and directed further proof as to the cargo; November 1783, part condemned. There were many further proceedings, out of which certain questions arose, and a prohibition moved for to the admiralty, wherein the court of king's bench held, 1st. That the admiralty court has jurisdiction over all questions of freight, claimed by a neutral master against a captor, who has taken the goods as prizes. 2d. That a monition having issued after the goods were condemned, and decreed to be delivered to the captors, at the suit of such master, against the plts., as owners or agents of the prize goods, to bring into court the produce remaining in their hands, to answer to the freight, the king's bench would refuse the prohibition. 3d. Though no fide-jussory caution had been taken before the goods were delivered to the captor, but the question of freight had been reserved by the terms of the decree for future consideration. In this leading case in addition to the general principles above laid down, we may further collect from the opinions of the several judges, 4th. That "the admiralty alone has jurisdiction not only over the question of prize, but of all its consequences," all its incidents. 5th. When the admiralty sees the neutral master has done nothing to forfeit his freight, it may well decree it to him. 6th. That so is the practice if he has violated no treaty, or the jus gentium, or has not refused search, or to shew his papers, or has not carried contrabands to the enemy, or has not violated other laws &c., which would forfeit his privilege as a neutral subject. 7th. If the prize court of admiralty take a stipulation for the return of goods to it, delivered out of its custody, yet it can also issue its monition to the possessors to bring in the goods themselves to answer freight, or for other purposes, especially if the goods have only changed hands, and the right of property has not been changed in market overt &c. 8th. "A court of common law cannot take cognizance of such freight; it involves in it the question of prize, or whether or not the goods are contraband, and many other questions, which depend on the treaties made with foreign powers, of which this court knows nothing, but all which must be subject to the decisions of some forum, governed by the same rules in all countries." 9th. The municipial laws of this country are not the laws by which other countries are governed. 10th. Courts of admiralty are instituted in all civilized countries, and found their determinations on the same general code of laws. 11th. The stipulation is only a cumulative remedy, and does not supersede the jurisdiction in rem, though the possession of the goods has been parted with. 12. A man does not give up his lien when the law compels him to give up the possession. 13th. If the court did wrong in giving costs and expenses, the only remedy was by appeal. These principles have been recognised by near all the important decisions on the subject the last fifty years in England and the United States. See many authorities collected, 2 Wh. App. 53 to 56; many cases in this work, Ch. 40, Insurance; Ch. 227, Captures; Ch. 224, Seizures &c. Ся. 33. Art. 3. 1 Wh. 159. 3. The freight allowed however is not always that origin- 2 Wh. App. ally agreed on, but usually a reasonable freight. The ship is 53, 54.not discharged till the goods are unloaded, but is when they are, and she then cannot be retained to carry the goods elsewhere, if restored; the separating being by order of court, then the whole freight becomes due, 6 Rob. 231; 1 Rob. 289; 1 Edw. 72. As it is lawful for a neutral to make voyages from one enemy's port to another, he is entitled to his freight, when captured in such voyages, and carrying goods on freight, if his conduct be fair, but if not so, and he conducts fraudulently, and violates beligerent rights, he loses it, and in flagrant cases forfeits even his vessel. He always loses his freight if he uses false papers, or carries contrabands, and if there has been a spoliation of papers. So where his ship causes the seizure. Letter of Sir William Scott and Sir J. 2 Rob. 104. Nichols to Mr. Jay, A. D. 1794. 1 Rob. 198, 219, 237, 286, 288; 3 Rob. 188, 595; 4 Rob. 169, 183, 199; 1 Gallis. 513; 2 Rob. 101, 128, 299. the Commer. cen. § 4. Appeal from the Circuit Court in Massachusetts. A 1 Wheaton's Swedish neutral vessel April 1814, on a voyage from Ireland R. 382. 407, to Spain, was captured by an American privateer. The cargo of the Swedish vessel was provisions, enemy's property, and the growth of the enemy's country, and she was specially allowed to carry them from Ireland to Spain, for the supply of the enemy's force in Spain, then in amity with the United States. The permission or license was the enemy's; and the Swede gave security so to carry them. Held, he was not entitled to freight. 2d. Had these provisions of enemy's growth been neutral property, they had been contraband by reason of the use to be made of them. 3d. Aliter had they been Swedish property, and of Swedish growth, and destined for the general supply of human life, though in an enemy's country. 4th. The neutral carrier of contrabands never has freight when captured; the Swede was, in fact, supplying the enemy's army by contract, and it made no difference, it being in Spain. [See the Julia's case, Ch. 224, a. 9.] In this case of the CH. 33. 4 Rob. 278. 6 Rob. 67 1 Edw. 56. -4 Rob. 304. Commercen, the court was not unanimous. The Chief Justice, contra, pages 395 to 407; with him agreed Livingston, J., also Johnson J., on the ground Sweden was the ally of England, in the war against France, and that the Swede had a right to aid in it, though neutral in our war with England. This, it seems, was a new case in point of fact. § 5. A neutral forfeits also his freight, if he engages in the enemy's transport service, and conveys in it military persons or his despatches; these are hostile acts. 4 Rob. 256; 6 Rob. 420, 430, 440, 461. So he loses his freight if he engages in the enemy's coasting trade not open to the neutral, 1 Rob. 296. So in his colonial trade, confined to his ship, 2 Rob. 186, as to do this he must identify himself with the enemy; but not if only temporarily opened to him. 6. A belligerent captures an enemy's ship, carrying neutral goods on freight. The belligerent is entitled to the freight, and to receive it of the neutral, as the enemy's ship-owner would have been, had the voyage been terminated, Consolato del Mare 273, because on the principle stated above, the capturing belligerent succeeds to his enemy's right. The objection his right to freight does not accrue till the goods are delivered at the destined port, or he offers to carry them to it, applies to the neutral carrier when captured on his passage, and he is disabled to carry them to it; with this difference, the captor prevents his performing. The result of the cases is, such belligerent is entitled to freight only when the goods are carried to their destined port, or something is done equivalent, he has no pro rata freight. 3 Rob. 101, 7. Ships recaptured. A ship was captured and recaptur180.—6 Rob. ed on her return voyage. Held, she was entitled to her whole 231, 289. freight, salvage deducted, but the cargo being long disputed, she could not, in any reasonable time, carry it to its destined port; so if the cargo unloaded by its owners, or by order of court at another port; but denied, where a ship was captured on her outward voyage and recaptured, and brought back, even pro rata itineris. 4 Rob. 199, 336, 364. 4 Rob. 90, 314, 278. 8. Freight may be on a part of the goods restored, though a part be condemned as contraband after unladen; and if unloaded under a hostile embargo on neutral ships, they are discharged of the lien of the freight. If a capture be right, yet if the cargo be lost by the captor's negligence, they must pay it. CHAPTER XXXIV. CH. 34. Art. 1. ASSUMPSIT, AS TO GAMING CONTRACTS. Statute of N. declares ART. 1. § 1. When contracts relate to gaming, it is often Debt on the material to know when actions can or cannot be supported on gaming acts. them. These gaming contracts, so far as they are void, are York, (Sess. chiefly so by the 9th of Anne, in England, and by a statute of 25, c. 44.) 1786, in Massachusetts; and by various statutes in the other horse-racing There have been many cases decided on the 9th of for money a Anne, in England, tending to explain the act; but few have nusance, been decided on our act. But as our act is nearly in the stake-holder whole verbatim, and in the material parts verbatim, with the indictable, & 9th of Anne, any explanatory cases on that, are so on ours. &c. void. states. makes the all contracts Mass. act, Laws of Me ch. 28. 2. By this act it is enacted, "that all notes, bills, bonds, 10 Johns. R. judgments, mortgages, or other securities, or conveyances what- 468, 469. soever, given, granted, drawn, entered into, or executed by March 4, any person or persons whatsoever, where the whole or any 1786. part of the consideration of such conveyances or securities See the acts of Virginia shall be for money or other valuable thing whatsoever, won by below. gaming, or playing at cards, dice, or any other game, or games, whatsoever, or by betting on the sides or hands of any person gaming, or for the reimbursing or repaying any money knowingly lent or advanced for any gaming or betting, or lent and advanced at the time and place of such play, to any person or persons so gaming or betting, or that shall, during such play, so play or bet, shall be void and of no effect." So far the 9th of Anne is verbatim, except in that act after the word dice, the words "tables, tennis-bowls," are inserted, but the sense is the same. And in either act, if the securities be of real estate, they The act of enure to the use of the persons they would, if the mortgagor, N. York, &c. were dead. against gaming was also By the second section of our act, any person losing money copied nearor property, as above, and having paid, may in assumpsit &c., ly from the to be brought in three months, recover it back, or damages; 9 Anne, c.14. English act, and if he do not bonâ fide sue in that time, any other person may sue for, and recover treble the amount, with costs in either case, &c. By the third section, the winner may be indicted, and pun- ished criminally &c. from said English act. Сн. 34. By the fourth section, the loser may recover on his own oath, unless the winner will swear to the contrary, and if he will, he recovers costs; but the plt. may, if he choose, proceed on common evidence. By the fifth section, gaming, &c. in taverns and licensed houses, is prohibited; and the remedy on this section is by indictment. The two acts of 9th Anne and of Massachusetts of March 4, 1786, are not alike, except in regard to the first section in each. The colony law of 1646, also, forbids dancing in tav erns. ART. 2. Questions and cases on the said first section. The questions may be ranked in two classes: First, What is a game within the provision? Second, What kind of contracts are void? 1. What other game or games. 2 Wils. 309, It was decided in this case, that horse-racing was within the Blaston v. words of the 9th of Anne, ch. 14; and that monies betted Pye, cites 2 Stra. 1118., and won therein, could not be recovered in assumpsit, brought Goodburn v. upon wager of 14 guineas to 8, by the plt. with the deft. on Morley.2 Wils. 36, 40, two races to be run by two horses; and as the wager was Lynall v. void as to the 14 guineas, being above £10, so the court held Longbotham. it was void as to the 8 guineas. And the court said, " they ought to extend the 9th of Anne to prevent excessive betting upon all sports, as well as games; and that although horseracing is not mentioned in that statute, yet it is within the general words, other game or games." 2 Bos. & P. 130, Shirley v. Sankey. --1 Wils. 220. Cowp. 281, Brown v. Jeffreys v. Salk. 344, 2. So a foot race is a game within the act; and it makes no difference if the race is against time, and by one person alone. The bets or wagers were, if A could run so far in such a time. The wager having been paid, the action was brought to recover back the money; and it was ruled that it must be laid and proved the third person was playing at a game called a foot race. It has been said that the statute of 16 Ch. II. ch. 7, names both horse and foot races; and that the 9th of Anne has reference to this act of Charles. So cricket is within the act, 2 Ch. Pl. 76. § 3. But a wager concerning the right manner of playing, is not within the statute. As at backgammon, if one stir a man, a wager is laid, whether he is obliged to play it or not. The acts forbid gaming, not wagers as to the mode of gaming. § 4. At common law, playing at cards, dice, &c. innocent13, Walker v. ly practised as a recreation, was deemed lawful; but it has Walker.-- been held that a general indebitatus assumpsit lies not for money won at play, but that it lies against him who holds the Aury. Same 3 Salk. 14.-3 Salk. 175, 2 Bac. Abr. 619.--5 Mod. 6 Mod. 128, Smith v. |