fied if it were left in his hands, and that if he deposited something, he might carry it away until four o'clock. He asked what would be required, and they said that he ought to leave one hundred pounds at least. He then produced a Bank bill, payable on demand, for that amount from his stocking, where he had concealed it, and handing it to Hodges, he said that that would do. The witness then went away, but subsequently showing the cross to a friend, he found that it was quite valueless. Information was, in consequence, given at Bow street of the robbery, and both prisoners were apprehended in the course of the ensuing day, money to the amount of nearly fifty pounds being found on each. It afterwards turned out that the prisoner Hodges changed Mr. Headley's Bank bill almost immediately after he had received it. In his possession was found a second cross, precisely similar to that palmed off upon the prosecutor. The prisoners being found guilty, were sentenced to be transported for seven years. 48. CAPTAIN KIDD'S CASE. (P. BURKE. Military Trials. 1866. p. 21.) Captain William Kidd the hero of, as it may be called, this political and nautical romance, was born in the town of Greenock, in Scotland, and bred up for a seaman's life. Having quitted his native country, he resided at New York, where he became owner of a small vessel, with which he traded among the pirates, and thus obtained a thorough knowledge of their haunts, and could give a better account of them than any other person whatever. He was a man not particularly remarkable for courage, but very avaricious. He could never resist the tempting influence of the rapid profits made by pirates, and to this was owing his connection with them. While in their company, he used to converse and act as they did; yet at other times he would make singular professions of honesty, and intimate how easy a matter it would be to extirpate sea robbers, and prevent their future depredations. His frequent remarks this subject on engaged the notice of several considerable planters in the state of New York, who, forming a more favorable opinion of him than his true character would warrant, procured him the patronage with which he was afterwards honored. Celebrated Naval and For a series of years complaints had been made of the piracies committed in the West Indies, which had been greatly encouraged by some of the inhabitants of North America, on account of the advantage from purchasing effects thus fraudulently obtained. This coming to the knowledge of King William III, he, in the year 1695, bestowed the government of New England and New York on his devoted follower, Richard Coote, Earl of Bellamont. . . . A royal commission in the usual form was granted to Captain Kidd, to take and seize pirates, and bring them to justice; but though a second commission was added, there was, beyond the general direction not to molest the king's friends, and to bring ships taken to legal trial, no special clause or proviso to restrain his conduct, or regulate the mode of his proceeding. . . . A ship was purchased and equipped in the port of London; it received the name, which this affair made so known, of the Adventure Galley. In this vessel Captain Kidd crossed the Atlantic, and then towards the close of the year 1695 sailed from New York and made prize of a French ship.. .. At the expiration of five weeks fell upon and seized the Quedagh Merchant, a ship of four hundred tons burthen, the master of which was an Englishman, named Wright, who had two Dutch mates on board, and a French gunner; but the crew consisted of Moors, natives of Africa, and were about ninety in number. . . . Kidd, therefore, on his arrival, was seized by order of his lordship, when all he had to urge in his defense was, that he thought the Quedagh Merchant a lawful prize, as she was manned with Moors, though there was no kind of proof that this vessel had committed any act of piracy. The trials of Kidd and his companions came on at the Old Bailey in May, 1701. The proceedings were very lengthy, and consisted of several distinct trials; the first was for murder against Kidd alone, the other trials were for various acts of piracy committed by him and different members of his crew... On Kidd's urging that he acted under a royal commission, Mr. Justice POWELL properly observed to the jury, "I understand that he had a commission; therefore if any one has a commission, and he acts according to it, he is not a pirate; but if he takes a commission for a color, that he may be a pirate, it will be bad indeed: and therefore, if the crown can prove that he was a pirate all along, this will be a great evidence against him.” . . . Lord Chief Baron WARD: "Gentlemen of the jury, The prisoners at the bar, William Kidd, Nicholas Churchill, James Howe, Robert Lamley, William Jenkins, Gabriel Loff, Hugh Parrot, Richard Barlicorn, Abel Owens, and Darby Mullins, in number ten, stand all here indicted for the crime of piracy, charged to be committed by them. And the instance of the crime is for feloniously and piratically seizing and taking the ship called the Quedagh Merchant, with the apparel and tackling thereof, to the value of 400 (pounds), and divers goods mentioned in the indictment to the value of 4500 (pounds), the goods of several persons unknown, from the mariners of the said ship, and this at high sea within the jurisdiction of the Court of Admiralty, about ten leagues from Cutsheen in the East Indies, the 30th of January, 1697, and in the eighth year of his Majesty's reign.. Majesty's reign. . . . To make good this accusation, the king's counsel have produced their evidence, and two witnesses have been examined in this case; each of them were in the ship which took the Quedagh Merchant, and very well acquainted with all the proceedings; that is, Robert Brandinham and Joseph Palmer. The first has given you an historical account of the whole proceedings of Captain Kidd, from his first going out of England in the Adventure Galley, to the time of this fact charged on them. They tell you that about May, 1696, the king intrusted this Captain Kidd with two commissions, and they were both read to you. By one of them under the Admiralty seal, he was authorized to set out as a privateer the Adventure Galley, and therewith to take and seize the ships and goods belonging to the French king, or his subjects, and such other as were liable to confiscation. And by the other commission, under the broad seal of England, authority was given for the taking of some pirates by name, and all pirates in the several places therein mentioned; but in no sort to offend or molest any of the king's friends or allies, their ships or subjects, by color thereof. And by both commissions command was given to bring all such ships and goods, as should be taken, to legal trials and condemnations. They tell us that this ship set out for Plymouth about May, 1696, and that in their passage they did take a French ship, and they did condemn that ship. Now, gentlemen, you must bear this in your minds, that to make it piracy it must be the taking piratically and feloniously upon the high sea, within the jurisdiction of the Admiralty of England, the goods of a friend that is, such as are in amity with the king. Now, you see what way they went to work, and what measures they took. Captain Kidd goes out, and goes to New York; and when he was there he has a project in his head, of setting up articles between himself and the people that were willing to be concerned with him: for now, whether it seems more probable from what followed, that Captain Kidd designed to manage himself according to the measures given him, and the powers of his commissions, or any other way, you must consider: for it is told you, that between one hundred and fifty and one hundred and sixty men came in under these articles, whereof the other prisoners were part, and concerned in them. And as to those articles, the import of them was, that whatever should be taken by these people in their expeditions should be divided into one hundred and sixty parts, whereof Captain Kidd was to have forty shares for his part, and the rest were to have according to the merits of each party, some whole shares, and some half shares. "Now, after these articles, you perceive what progress they made, and what course they took; they went from one place to another, and used a great deal of severity wherever they came. A design they had to go into the Red Sea, and they had expectations of the Mocca fleet that lay at Mocca, and they sent their spies three times to get intelligence: the two first times they could make no discovery, but the third time they made an effectual discovery that the fleet was ready to sail; and in the meantime Captain Kidd lay there in expectation of this fleet; and as the first witness tells you, Captain Kidd said, he intended to make a voyage out of this fleet. Well, he had a discovery of this fleet, and they came accordingly; and they tell you, that he and his men did attack one of the ships; but these ships being guarded by two men-of-war, he could make nothing of them; however, he showed what his intention and design was. Could he have proved that what he did was in pursuance of his commissions, it had been something; but what had he to do to make any attack on these ships, the owners and freighters whereof were in amity with the king? This does not appear to be an action suitable to his commissions. After he had done this, he came to land, and there, and afterwards at sea, pursued strange methods, as you have heard. The seeming justification he depends on is his commissions. Now it must be observed how he acted with relation to them, and what irregularities he went by. He came to a place in the Indies, and sent his cooper ashore, and that cooper was killed by the natives; and he uses barbarity, and ties an Indian to a tree, and shoots him to death. Now he went from place to place, and committed hostilities upon several ships, dealing very severely with the people. "But this being something foreign to the indictment, and not the facts for which the prisoners at the bar are indicted, we are confined to the Quedagh Merchant. But what he did before shows his mind and intention not to act by his commissions, which warrant no such things. Gentlemen, you have an account, that he met with this ship, the Quedagh Merchant, at sea, and took her; that this ship belonged to people in amity with the king of England; that he seized this ship and divers goods were taken out of her and sold, and the money divided. pursuant to the heads contained in those articles set up in New York. The witnesses that speak to that come home to every one of the prisoners; they tell you that the dividend was made; that Captain Kidd had forty shares of the money, and the rest of the prisoners had their proportions according to the articles, some a whole share, and some a half share of that money. After they had seized the ship, you hear of a certain sort of project, that a Frenchman should come and pretend himself the master, and procure, or pretend to procure a French pass, under a color that these people's ship and goods, who were Moors, should be Frenchmen's ship and goods, or sailed under a French pass, and so justify what he did under the color of his commission from the king. Now, no man knows the mind and intentions of another, but as it may be discovered by his actions. If he would have this to be understood to be his intention, or that it was in reality, that he took this as a French ship, or under a French pass, then he ought to have had the ship and goods inventoried, and condemned according to law, that he might have had what portion belonged to him, and that the king might have had what belonged to him, as his commissions directed; but here was nothing of that done, but the money and goods which were taken were shared, and you have an account likewise how some of the goods were sold, and the money disposed of; and one witness speaks positively of the distribution of the goods that remained unsold, that they were divided according to the same proportions as the articles mentioned, and every one of the prisoners had his share; there belonged forty shares to Captain Kidd, and shares and half shares to the rest. "Now, this is the great case that is before you, on which the indict ment turns.' 49. BRADFORD v. BOYLSTON FIRE AND MARINE INSURANCE COMPANY. SUPREME JUDICIAL COURT OF MASSACHU SETTS. 11 Pick. 162.) (1831. Assumpsit on a policy of insurance underwritten by the defendants, upon property of the plaintiffs shipped on board a vessel, from a port in England to a port of discharge in the United States; "partial loss to be computed upon each package as if separately insured." The plaintiffs allege in their declaration, that on May 5, 1828, they shipped on board the Aspasia, at Liverpool, certain goods, to be conveyed to New York, and that owing to tempests on the voyage the salt water found access to the goods and injured them; and the plaintiffs claimed a partial loss amounting to 33 per cent upon the value of the goods. At the trial before WILDE, J., it appeared, that the goods alleged to have been damaged consisted of thirty-two bales of point and duffil blankets and that the blankets were manufactured for the plaintiffs by one Wood, in the kingdom of Great Britain. The plaintiffs offered evidence tending to prove that the blankets were damaged on board, by the perils alleged in their declaration. The defendants contended that the damage arose from some defect in the manufacture of the blankets, or from their having been fraudulently packed by Wood in a wet state, for the purpose of increasing their weight, the blankets having been purchased by the plaintiffs by weight. The defendants offered in evidence two depositions of one Russell, to prove that during the year 1828 he imported into New York certain bales of point and duffil blankets manufactured by Wood, which proved to be damaged, and, in the opinion of Russell, by being packed in a wet state for the purpose of increasing their weight. The defendants also offered the testimony of one Lee, who stated that in 1828, the firm of which he was a partner, received a consignment of point and duffil blankets from Wood, and also some which they purchased of Wood; that the blankets came in three different vessels, and were all damaged; that the blankets in the inside of the bales were slightly damp and very much. spotted, and the outside blankets were perfectly dry; that the damage to the blankets exhibited as part of the Aspasia's cargo, was of a similar character, and he would have supposed they were a part of his own; that the damage was of a peculiar kind and not like that produced by salt water. There was evidence in the case tending to show that the damage was caused by sulphuric acid. To the admission of the depositions of Russell and of the testimony of Lee, the plaintiffs objected, on the ground that it was an attempt to prove that Wood had fraudulently damaged the blankets in question, by proving that he had in other cases damaged blankets by packing them in a wet state to increase their weight; which the plaintiffs contended it was not competent for the defendants to do. But the Judge overruled the objection and permitted the evidence to go to the jury... The jury found a verdict for the defendants, and no inquiry was made or moved for by the plaintiffs' counsel at the time, as to the principles upon which the verdict was founded. The plaintiffs moved for a new trial: 1. Because the depositions of Russell and the testimony of Lee were admitted in evidence. . . . S. D. Ward, in support of the motion. S. Hubbard and Cook, contra. PUTNAM, J., delivered the opinion of the Court.-The main objection which has been made to the proceedings at the trial, is, that the testimony of Lee and the depositions of Russell ought not to have been received for the defendants. It is contended that the evidence proves that Wood made bad blank ets for other persons and that this circumstance has no tendency to prove that he made bad blankets for the plaintiffs; that it is no better than to offer evidence of general bad reputation, when a party should be held to prove the particular fraud. And the case of Holcombe v. Hewson, 2 Campb. 391, has been much relied upon, and is the strongest which we have seen for the plaintiffs. In that case Holcombe was bound to prove that he had supplied Hewson with good beer, and he offered to prove that several other persons who dealt with him while he supplied the defendant, were satisfied with his beer, as being of excellent quality; but Lord ELLENBOROUGH held the evidence to be inadmissible, because he might have dealt well with some, but not well with other customers. This case was properly decided; the evidence offered by the plaintiff was of his own doings and conduct in regard to strangers, from which it was intended to be inferred that his conduct towards the defendant had been similar; that would be clearly a non sequitur. But in the case at bar the evidence objected to does not arise between the party who furnished the damaged goods and the purchaser, but between strangers to the manufacturer. The evidence comes in collaterally, and is greatly, if not unavoidably, connected with other testimony which is admitted to be material and competent. The point to be proved by the defendants was, that the blankets were injured by some other cause than the perils of the sea. They had a peculiar appearance; they were so singularly spotted and marked, that Lee, who had imported blankets from England, of similar appearance, would have supposed they were the same. This happened in 1828, the same year that the plaintiffs imported those now in question. It happened also, that a great many bales of blankets exactly resembling the |