Dawson v. Graves , 8 Va. 127 ( 1788 )

William Graves and John Hague, as well on behalf of themselves as of the commontvealfh, filed a libel, in the court of admiralty, against the ship Cyrus, James Dawson master, for a breach of the then revenue laws of the state, charging that the ship, on the 22d of June, 1786, imported salt and other articles, from Philadelphia, into the port of Norfolk, without reporting the same- truly to the collector; but-made a false entry thereof, by concealing 1000 bushels of salt, some loaf sugar, rum and soap, with intent t,o defraud the commonwealth ; whereby the ship, and that part of the cargo not entered, became liable to seizure and condemnation.

The answers of Dawson the master, and of John Paris as agent for Bell, Carson, Pringle & Co. of Philadelphia, all citizens of Pennsylvania, state that the ship was owned by the said Bell, Carson, Pringle & Co.; that she arrived at Norfolk, on the 21st of June, 1786; and that the master, within the time limited by law, made an entry of the ship, cargo and stores; delivered a manifest and invoices thereof to the naval officer; gave bond and security for payment of the duties; and received a permit for landing the cargo, which he has lost,' or mislaid.

The seamen filed a claim for their wages; to which, and the answers, there was a general replication.

Upon the trial of the issues, the libellants offered Henry Wedford as a witness; to which the respondents objected ; but the court received him; and the respondents filed a bill of exceptions, to their opinion, stating, that Wedford was introduced, by the libellants, “to prove, that he had received, from on board the said ship Cyrus, seventy-one hogsheads and six tierces of salt, although he had taken out a permit for the quantity of fifty hogsheads only, from the naval officer at Norfolk: which permit he did not produce, alledging that he had it not in his possession, having delivered it to John Hague the libellant. To the testimony of whom the said respondents excepted, because the said Henry Wedford was to prove a fact, by his oath, contradictory to the permit which he had taken out from the naval officer, as containing a true account of the lading he had on board. But the said Wedford was examined, as a witness; for which reason the respondents, by their proctor, excepted to the testimony of the said .witness.”

The jury found the following special verdict: “We of the jury find that the ship Cyrus, in the libel mentioned, is the property of Messrs. Bell, Carson, Pringle & Co., merchants in Philadelphia, who are citizens of Pennsylvania. That the said ship cleared out, at the port of Philadelphia aforesaid, on the twelfth day of June last, and arrived at the port of Norfolk, in this state, on the twentieth day of the same month, having on board divers goods, wares and merchandizes, the property of sundry citizens of the state of Pennsylvania. That captain James Dawson, commanding the said ship Cyrus, made a report of his said ship, on the twenty-second day of June last, with the naval officer of the port of Norfolk aforesaid, and paid, or secured to be paid, the duty of tonnage payable for the said ship : and also made a report and entry of part of her cargo within forty-eight hours after her arrival; but did not make report of, or enter four hundred and six and an half bushels of salt, part of the cargo aforesaid, nor pay or secure to be paid, the duties thereon, according to law. If therefore the law be for the libellants, we find for the libellants the said ship Cyrus, with her tackle, apparel, furniture &c., together with the four hundred six and an half bushels of salt not entered as aforesaid. If for the respondents, then we find for the respondents.”

The court gave judgment for the libellants upon the special verdict, and condemned the ship and the 406J bushels of salt, as forfeited; and ordered them to be sold. The respondents offered to appeal from the interlocutory sentence ; insisting that the sale could not, properly, take place, until the cause was decided by the court of appeals; and filed a bill of exceptions stating those facts. But the court refused the appeal, and the sale was made under the sentence : the proceeds of which were afterwards distributed by the court: from which last mentioned final decree, the respondents appealed to the court of appeals.

For the appellants it was contended, that the witness ought not to have been received to speak to the contents of the permit, without producing the permit itself. To which it was answered, by the counsel for the appellees, that although that, as a general proposition, might be true, it was no objection as the case stood : for no notice had been given to produce the permit; and instead of the witness speaking to the contents of that paper, the bill of exceptions stated, that he was introduced to prove a fact which contradicted it; adding, merely, that he was examined; and not, that he was examined to prove the .contents of the permit.

The court however thought the witness”inadmissible; and the following was the entry made on the order book, “ The court having maturely considered the transcript of the record, and the arguments of the counsel on both sides, are of opinion, that the said decree is erroneous, in this, that the said court permitted Wedford a witness to give testimony of the contents of a permit, not proved to have been lost. Therefore it is considered, by the court, that the same be reversed and annulled, and that the appellees pay, unto the appellants, their costs by them expended in prosecuting their appeal aforesaid here. And it is further ordered, that the jurors’ verdict, in this cause, be set aside; and the cause sent back, to the said court of admiralty, for a new trial to be had therein.”