Commercial Domicil. country, he is a subject of that country, and is to be considered, even by his native country, as having a hostile character impressed upon him. Ibid. 8. The question, whether the person to be affected by the right of domicil, had sufficiently made known his intention of fixing himself permanently in a foreign country, must depend upon all the circumstances of the case. If he has made no express declaration on the subject, and his secret intention is to be discovered, his acts must be attended to as affording the most satisfactory evidence of his intention. Ibid. 9. One who removes to a foreign country, settles himself there, and engages in the trade of the country, furnishes by these acts such evidence of an intention to reside there, as to stamp him with the national character of the state where he resides. Ibid. 10. In questions on this subject, the chief point to be considered is the animus manendi; and courts are to devise such reasonable rules of evidence as may establish the fact of intention. If it sufficiently appear that the intention of removing was to make a permanent settlement, or for an indefinite time, the right of domicil is acquired by a residence of even a few days. Ibid. 11. A neutral, or subject found residing in a foreign country, is presumed to be there animo manendi; and if a state of war should bring his national character into question, it is upon him to explain the circumstances of his residence. Ibid. 12. A citizen of one belligerent, who had acquired a domicil in the territories of the other, before the breaking out of hostilities, cannot be deemed an enemy in the strict sense of the word: yet he is deemed such, with reference to the seizure of so much of his property, concerned in the trade of the enemy, as is connected with his residence. The same rule applies to neutrals. Ibid. 13. So a subject of a belligerent state, domiciled in a neutral country, is deemed a neutral by each belligerent, with reference to the trade he carries on with the adverse belligerents, and with all the rest of the world. Ibid. 14. The national character which a man acquires by residence, may be thrown off at pleasure by a return to his native country, or even by turning his back on the country in which he has resided, on his way to another. It is an adventitious character gained by residence, and which ceases by non-residence. It no longer adheres to the party, from the moment he puts himself in motion, bona fide, to quit the country, sine animo revertendi. Ibid. made, they may never be executed, the party may change his determination. Ibid. 16. A native or naturalized citizen of one country, who is surprised in the country where he was domiciled, by a declaration of war, may remove home, or remain; but until the election is made, the character given by the domicil remains, and his property is subject to capture by the cruisers of the country of which he is a citizen. Ibid. 17. A naturalized citizen who, in time of peace, returns to his native country for the purpose of trade, but with the intention of returning again to his adopted country, continuing in the former a year after the commencement of the war between the two countries, for the purpose of winding up his business, engaging in no new commercial transactions with the enemy, and then returning to his adopted country, has gained a domicil in his native country, and his goods are not subject to capture and condemnation. The Frances, 8 Cranch, 335; 3 Cond. Rep. 154. 18. The commercial domicil of a merchant, at the time of the capture of his goods, determines the character of those goods, hostile or neutral. Ibid. 19. The produce of an enemy's colony is to be considered as hostile property, so long as it belongs to the owner of the soil; whatever may be his national character in other respects, or whatever may be his place of residence. Thirty Hogsheads of Sugar v. United States, 9 Cranch, 191; 3 Cond. Rep. 353. 20. A merchant having a fixed residence, and carrying on business at the place of his birth, does not acquire a foreign commercial character by occasional visits to a foreign country. The Nereide, 9 Cranch, 388; 3 Cond. Rep. 439. 21. Goods, the property of a merchant actually domiciled in the enemy's country at the breaking out of the war, are subject to capture and condemnation as prize. The Mary and Susan, 1 Wheat. 46; 3 Cond. Rep. 480. 22. The property of a house of trade in the enemy's country is good prize, notwithstanding the neutral domicil of one or more of the partners. The Antonia Johanna, 1 Wheat. 159; 3 Cond. Rep. 525. 23. It seems that where a native citizen of the United States emigrated before a declaration of war to a neutral country, there acquired a domicil, and afterwards returned to the United States during the war, and reacquired his native domicil; he became a redintegrated American citizen, and could not afterwards, flagrante bello, acquire a neutral domicil by again emigrating to his adopted country. The Dos Hermanos, 2 Wheat. 76; 4 Cond. Rep. 39. 15. If any thing short of actual removal be 24. The native character does not revert by a admitted to work a change in the national cha-mere return to his native country, of a merchant racter, acquired by residence, the evidence of a bona fide intention to remove should be such as to leave no doubt of its sincerity. Mere declarations of such an intention ought never to be relied on, when contradicted, or at least rendered doubtful, by a continuance of residence. They may have been made to deceive, or, if sincerely who is domiciled in a neutral country at the time of capture, who afterwards leaves his commercial establishment in the neutral country, to be conducted by his clerks in his absence; who visits his native country merely on mercantile business, with an intention of returning to his adopted country: but the neutral domicil still Commercial Domicil.-Commercial Law. continues. The Friendschaft, 3 Wheat. 14; 4 | loses his neutral character. The Chester v. The Cond. Rep. 189. Experiment, 2 Dall. 42. 25. British subjects resident in Portugal, though entitled to great privileges, do not retain their native character; but acquire that of the country where they reside and carry on their trade. Ibid. 26. If a party put himself in itinere, to return to his native country, he is already deemed to have reassumed his native character. The St. Lawrence, 1 Gallis. C. C. R. 467. 34. Whether an American citizen may, independently of any legislative act to that effect, throw off his allegiance to his native country or not, it at least cannot be done without a bona fide change of domicil. It can never be asserted as a cover for fraud, or as a justification of the commission of a crime against the country, or for a violation of its laws, where this appears to be the intention of the act. The Santissima Trinidad, 7 Wheat. 283; 5 Cond. Rep. 284. 27. Citizens, domiciled in the enemy's country, must actually remove before the breaking out 35. A British subject domiciled in the United of hostilities; otherwise their property, then States, though temporarily absent in a British afloat, will be liable to capture. The St. Law-island, is, for the purposes of trade, held to be rence, 1 Gallis. C. C. R. 467. The Frances, 1 an American merchant. The Ship Ann Green, Gallis. C. C. R. 614. 1 Gallis. C. C. R. 274. 28. In general, the national character of a person is to be decided by that of his domicil; if that be neutral, he acquires the neutral character; if otherwise, he is affected with the enemy's character. The San Jose Indiano, 2 Gallis. C. C. R. 268. 29. But the property of a person may acquire a hostile character, altogether independent of his own peculiar character derived from residence. The origin of the property, or the traffic in which it is engaged, may stamp it with a hostile taint, although the owner may happen to be a neutral, domiciled in a neutral country. Such are the instances of engagements in the colonial, coasting, fishing, or other privileged trade of the enemy. Ibid. 30. The general principle is, that where a person is engaged in the ordinary or extraordinary commerce of an enemy's country, upon the same footing, and with the same advantages as native resident subjects, his property, so employed, is to be deemed incorporated into the general commerce of that country, and subject to confiscation, be his residence where it may. Ibid. 31. Every man is viewed, by the law of nations, as a member of the society in which he is found. Residence is prima facie evidence of national character, susceptible, however, at all times, of explanation. If it be for a special purpose, and transient in its nature, it shall not destroy the original or prior national character. But if it be taken up, animo manendi, then it becomes a domicil, superadding to the original or prior character, the rights and privileges, as well as the disabilities and penalties of a citizen or subject of the country in which the residence is established. Johnson v. Sundry Articles of Merchandise, 6 Hall's Am. Law. Journ. 68. 32. An inhabitant or resident, is a person coming into a place with an intention to establish his domicil or permanent residence, and, in consequence, actually resides there. The time is not so essential as the intent, executed by making or beginning the actual establishment, though it is abandoned in a longer or shorter period. United States v. The Penelope, 2 Adm. Decis. 438. 33. The subject of a neutral power, residing and carrying on trade in the enemy's country, 36. The question of enemy or friend, depends on the domicil of the party. A shipment made to Canada, by a British subject, domiciled in the United States, but temporarily at Jamaica, as a British subject, does not, if made in time of peace, affect the property with a hostile character, if war breaks out during the voyage. But it is otherwise, if the shipment was made when the war was known. Ibid. 37. Length of time, connected with other circumstances, may go very far to constitute domicil. Upon a residence for temporary purposes there may be engrafted all the effects of permanent settlement, if it be continued for a great length of time, and with conduct which demonstrates that new views and new connections have supervened upon the original purposes; but, on the other hand, mere length of time cannot be decisive, where the purpose is clearly proved to have been temporary, and still continues so, without any enlargement of views: and even the shortest residence, if with a design of permanent settlement, stamps the party with the national character. The question, after all, results in an inquiry into the intention and conduct of the party, and it is extremely difficult to lay down any general rule upon the subject. Ibid. 284. 38. Domicil, in an enemy's country, gives a hostile character; and the same principle has been applied to a house of trade established in an enemy's country, though the parties might have a neutral domicil. The Society for Propagating the Gospel, &c., v. Wheeler, 2 Gallis. C. C. R. 130. COMMERCIAL LAW. 1. In the port of Liverpool, a collision took place between two American ships, both laden with cargoes, and ready to sail for the United States; one of the ships was much injured, was obliged to re-land her cargo, which was much damaged, and to undergo considerable repairs. The vessel which did the injury had a pilot on board, and was coming out of dock. The owner of the vessel which had done the damage claimed that, by the statutes of Great Britain, Commercial Law. he was not responsible for any damage occasioned by the fault, negligence, or unskilfulness of the pilot. The court held, that the collision having taken place in the port of Liverpool, the rights of the parties depend upon the provisions of the British statutes, then in force; and if doubts exist as to their true construction, the construction adopted by the British courts must be adopted in this court. Smith et al. v. Condry, 17 Peters, 20. 2. The decisions of the courts of England establish that the master and owner of a vessel, in the port of Liverpool, having a pilot on board, in cases when by the statutes a pilot is required to be on board, are not answerable for any loss or damage by collision; nor are they prevented from recovering on any contract of insurance by reason of any default or neglect on the part of the pilot. Ibid. of the paper transmitted, it always appeared to be the property of the respective banks, and to be remitted by each of them upon its own account, there is a lien for a general balance of account upon the paper thus transmitted, no matter who may be its real owner. Bank of the Metropolis v. The New England Bank, 1 Howard, 234. 9. Every subsequent security given for a loan originally usurious, however remote or often renewed, is void. Walker v. Bank of Washington, 3 Howard, 62. 10. Where there was an application to a bank for a discount upon a note, to be secured collaterally, and the party applying drew checks upon the bank, which were paid before the note was actually discounted; and the bank treated the note, when discounted, as having been so on the day of its date, instead of a subsequent day, on which its proceeds were carried to the credit of the party, it was held not to be usury. Ibid. 11. The court below was right in refusing an they might presume usury as a fact. Ibid. 12. In cases of a written contract, the question of usury is exclusively for the decision of the court. Ibid. 3. The plaintiffs in the circuit court claimed damages for a loss of a market of the cargo, by reason of the detention of their vessel for re-instruction to the jury that, upon such evidence, pair at the port of Liverpool. They asserted a right to value the cargo at what it would have brought had it arrived in due season at the port to which the vessel was destined, when she sus tained the injuries by the collision. The court 13. The court adheres to the rule laid down said: It has been repeatedly decided in cases in Walton v. Shelly, 1 T. R. 296, sustained as it of insurance, that the insured cannot recover for has been by the decisions of this court in The the loss of probable profits, at the port of desti- Bank of the United States v. Dunn, 6 Peters, 57; nation; and that the value of the goods at the The Bank of the Metropolis v. Jones, 8 Peters, place of shipment is the measure of compensa-12; and Scott v. Lloyd; viz., that a party to a tion. There can be no good reason for establishing a different rule in cases of loss by collision. It is the actual damage sustained by the party, at the time and place of the injury, that is the measure of damages. Ibid. 4. A letter of guarantee, written in the United States, and addressed to a house in England, must be construed according to the laws of that country. Bell and Grant v. Bruen, 1 Howard, 169. 5. Extrinsic evidence may be used to ascertain the true import of such an agreement, and its construction is matter of law for the court. Ibid. 6. In bonds, with conditions for the performance of duties, preceded by recitals, the undertaking, although general in its terms, is limited by the recital. Ibid. 7. But commercial letters are not to be construed upon the same principles as bonds, but ought to receive a fair and reasonable interpretation, according to the true import of terms, to what is fairly to be presumed to have been the understanding of the parties; and the presumption is to be ascertained from the facts and circumstances accompanying the entire transaction. Ibid. negotiable paper, having given it value and currency by the sanction of his name, shall not afterwards invalidate it by showing, upon his own testimony, that the consideration on which it was executed was illegal. Henderson v. Anderson, 3 Howard, 73. 14. When a creditor, residing in Louisiana, drew bills of exchange upon his debtor, residing in South Carolina, which bills were negotiated to a third person, and accepted by the drawee, the creditor had no right to lay an attachment upon the property of the debtor, until the bills had become due, were dishonoured, and taken up by the drawer. Black v. Zacharie, 3 Howard, 483. 15. By the drawing of the bills, a new credit was extended to the debtor for the time to which they ran. Ibid. 16. The laws of Louisiana, allowing attachments for debts not yet due, relate only to absconding debtors, and do not embrace a case like the above. Ibid. 17. The legal title to stock held in corporations situated in Louisiana, does not pass under a general assignment of property, until the transfer is completed in the mode pointed out by the laws of Louisiana regulating those corporations. Ibid. 8. Where there have been, for several years, mutual and extensive dealings between two banks, and an account current kept between them, in which they mutually credited each other with the proceeds of all paper remitted for collection, when received, and charged all costs of protests, postage, &c.; accounts regularly transmitted from the one to the other, and settled upon these principles; and upon the face | Ibid. 18. But the equitable title will pass, if the assignment be sufficient to transfer it by the laws of the state in which the assignor resides, and if the laws of the state where the corpora tions exist do not prohibit the assignment of equitable interests in stock. Such an assignment will bind all persons who have notice of it. Commission.-Commission by Brevet.-Commissioners to adjust Land Titles in Louisiana. 19. The laws of Louisiana do not prohibit the | ture of the transaction; the principal may treat assignment of equitable interests in the state, the sub-agent as his agent, and when he has by residents of other states. Ibid. received the money, may recover it in an action for money had and received. Wilson & Co. v. Smith, 3 Howard, 763. 20. Personal property has no locality. The law of the owner's domicil is to determine the validity of the transfer or alienation thereof, unless there is some positive or customary law of the country where it is found, to the contrary. Ibid. 21. Where a general objection is made in the court below, to the reception of testimony, without stating the grounds of the objection, this court considers it as vague and nugatory; nor ought it to have been tolerated in the court below. Camden v. Doremus, 3 Howard, 515. 22. Where, at the time of the endorsement and transfer of a negotiable note, an agreement was made that the holder should send it for collection to the bank at which it was, on its face, made payable, and in the event of its not being paid at maturity, should use reasonable and due diligence to collect it from the drawer and prior endorsers, before resorting to the last endorser, the holder is bound to conditions beyond those which are implied in the ordinary transfer and receipt of commercial instruments. Ibid. 23. Evidence of the general custom of banks to give previous notice to the payor of the time when notes will fall due, was properly rejected, unless the witness could testify as to the practice of the particular bank at which the note was made payable. Ibid. 24. A presentment and demand of payment of the note at maturity, within banking hours, at the bank where the note was made payable, was a sufficient compliance with the contract to send it to the bank for collection. Ibid. 25. The record of a suit brought by the holder against the maker and prior endorsers was proper evidence of reasonable and due diligence to collect the amount of the note from them; and it was a proper instruction, that if the jury believed that the prior endorsers had left the state and were insolvent, the holder of the note was not bound to send executions to the counties where these endorsers resided at the institution of the suit. Ibid. 26. The diligent and honest prosecution of a suit to judgment, with a return of nulla bona, has always been regarded as one of the extreme tests of due diligence. Ibid. 27. And the ascertainment, upon correct and sufficient proofs, of entire and notorious insolvency, is recognised by the law as answering the demand of due diligence, and as dispensing with the more dilatory evidence of a suit. Ibid. 28. If the holder cannot obtain a judgment against the maker for the whole amount of the note, in consequence of the allowance of a setoff as between the maker and one of the prior endorsers, this is no bar to a full recovery against the last endorser, provided the holder has been guilty of no negligence. Ibid. 29. Whenever, by express agreement of the parties, a sub-agent is to be employed by an agent to receive money for the principal; or where an authority to do so may fairly be implied from the usual course of trade, or the na 30. If, in such case, the sub-agent has made no advances, and given no new credit to the agent on account of the remittance of the bill, the sub-agent cannnot protect himself against such an action by passing the amount of the bill to the general credit of the agent, although the agent may be his debtor. Ibid. See BANKS; BAnker; Bankrupt and BankRUPTCY; BILLS OF EXCHANGE AND PROMISSORY NOTES; DAMAGES; GUARANTEE; INSURANCE; LIEN; PARTNERSHIP; PIRACY AND PIRATICAL ACTS. COMMISSION. Where a consignee, with a del credere commission, sells goods for his principal at a certain price, and afterwards, upon a suspension of specie payments in the state, receives payment in bank notes of the state banks at a depreciated value, he is not entitled to deduct the amount of the depreciation from the debt, but must account for the full price, at the specie or par value, to his principal. Dunnell v. Mason, 1 Story's C. C. R. 543. COMMISSION BY BREVET. 1. The defendant, being a lieutenant in the army of the United States, was commissioned, June 30th, 1834, as a captain by brevet, to take rank from September 30th, 1829: Held, by the circuit court, that the commission took effect retroactively, and that the defendant was entitled to receive the pay of a captain by brevet, for services rendered as captain from the 30th of September, 1829. United States v. Vinton, 2 Sumner's C. C. R. 299. 2. Where a brevet commission in the army of the United States is conferred upon a party, to take rank from a prior date, the pay and emoluments of the rank conferred, follow, as an incident, from this date, whenever the party has rendered services according to that rank. Ibid. COMMISSIONERS TO ADJUST LAND TITLES IN LOUISIANA. The acts of the commissioners appointed to adjust and settle land titles in Louisiana, under the acts of congress authorizing and confirming the same, are conclusive as to all titles to lands which have been confirmed, according to the provisions of the different acts of congress on [the subject. Strother v. Lucas, 12 Peters, 410. Commission to take Testimony. COMMISSIONS TO VESSELS OF WAR, AND 1. A commission, regularly issued, may be forfeited by grossly illegal conduct; and a commission fraudulently obtained is, as to vesting the interests of prize, utterly void. But a commission may be lawfully obtained, although the parties intended to use it as a cover for illegal purposes. The Experiment, 8 Wheat. 261; 5 Cond. Rep. 433. 2. If a commission is fairly obtained, without imposition or fraud upon the officers of government, it is not void merely because the parties privately intended to violate, under its protection, the laws of their country; nor is the abuse of their commission, per se, evidence that it was originally obtained by fraud and imposition. 1bid. 3. Where a capture has actually taken place, with the assent, either expressed or implied, of the commander of the squadron, the prizemaster may be considered as a bailee to the use of the whole squadron who are to share in the prizemoney, and thus the commander is made responsible; but not so as to mere trespasses, unattended with a conversion to the use of the squadron. Ibid. 4. A commission to capture enemy's property, extends to all neutral property seized in violating neutral duties. Maisonnaire v. Keating, 2 Gallis. C. C. R. 339. COMMISSION TO TAKE TESTIMONY. 1. Depositions taken under a commission issued at the instance of the defendant, may be read in evidence by the plaintiff, although the plaintiff had no notice of the time and place of taking them. Yeaton v. Fry, 5 Cranch, 335; 2 Cond. Rep. 273. 2. The court will not award a commission to take the testimony of absent witnesses until the commissioners are named. Van Stephorst v. The State of Maryland, 2 Dall. 401; 1 Cond. Rep. 2. 3. Under particular circumstances the court allowed a special commission, to take the depositions of witnesses, with instructions: 1. That the interrogatories should be filed in the court here by both parties previous to the issuing of the commission. 2. That the commissioners should be directed not to admit any additional interrogatories. 3. That neither parties nor counsel should be allowed to appear before the commissioners. Cunningham v. Otis, 1 Gallis. C. C. R. 166. Wash. C. C. R. 43. tions will be sustained. Armstrong v. Brown, I mission to take testimony, which had issued in my's country, in a prize cause, is contrary to the sion, should be substantially answered at least; 7. Each interrogatory annexed to the commiswhole testimony of the witness: although, in and the omission so to answer, is fatal to the his answer to the general interrogatory, the witness has said he knows nothing material to either party. Ketland v. Bissett, 1 Wash. C. C. R. 144. executed in a foreign country, the government 8. Where a commission to take evidence was of which refused to let the commissioners act, power; but the commission was executed by a considering it an assumption of the sovereign judge of the court in the presence of the commissioners; the depositions were permitted to be read, as otherwise the course of justice might be impeded. In such a case the evidence must be fairly taken; all the evidence on each side must be put and answered. If, however, the interrogatories have been substantially put and Union Ins. Co., 2 Wash. C. C. R. 7. answered, it is sufficient. Winthrop v. The sition, taken under a commission to a foreign 9. It is no objection to the reading of a depocountry, that the same witness had been previously examined and cross-examined in the United States. Ibid. of witnesses, must be executed by all the com- ch. 20, sec. 30, as to taking depositions de bene 4. Commissioners to take depositions of witnesses, act under a special authority derived in the thirteenth section of the judiciary act of 12. Depositions taken according to the proviso from the court, which must be strictly pursued; 1789, ch. 20, under a "dedimus potestatem," and, therefore, where a commission had issued "according to common usage, where it may be to four commissioners jointly to take depositions, necessary to prevent a failure or delay of justice,” and it was executed and returned by three only, are, under no circumstances, to be considered although both of the commissioners nominated as taken de bene esse, whether the witness reby the defendant had acted, yet he may object side beyond the process of the court, or within to the reading of the depositions, and the objec-it; the provision of the act relative to deposi |