Weston J.
The policy executed by Gordon is very brief in its terms ; but with regard to risks, it expressly assumes such as are contained in all regular policies of insurance, to be adjusted according to the rules established at Lloyd’s in London, or at the regular insurance offices in the United States. It was a policy therefore against what are called the usual risks. The form of of the policy now used in London, and which it seems has varied very little for two hundred years, [Park 14] embraces losses arising from “ men of war, enemies, pirates, rovers, takings at “ sea, arrests, restraints, and detainments of all kings, princes and people of what uation, condition, or quality soever.” These risks among others are to be found also in the common printed forms in use in this country. Loss by capture then, being one of the usual risks contained in regular policies, is clearly included in the one in question. And we are not at liberty to vary a contract, the terms of which are thus explicit, from any considerations drawn from the amount of the premium, or from the letter of the assured to their correspondent, adduced to shew their sense of the contract, written with a view to obtain indemnity from another quarter, in which they were however unsuccessful. In this letter, they speak of the policy of Gordon as protecting them against sea risks only ; but in the instrument executed by the defendants, upon which this action is brought, loss by capture is contemplated as being within this policy; and they engaged to hold themselves responsible for the amount, if Gordon does not pay on presentation of regular documents, proving the condemnation or loss. But what risks were in fact assumed must be determined from the policy itself, which we are satisfied includes, among others, the risk of loss by capture.
The property captured was proved at the trial to have belonged to the plaintiffs; and that it exceeded in value the amount insured by this policy. But it is contended that the contract cannot be enforced against Gordon or against the defendants, who have assumed his responsibility, because the goods onboard were not shipped in the name of the true owners. This fact is distinctly [187]*187noticed in tlie policy and the property thus covered is expressly insured. No law of the United Stales is violated by a measure of this sort, which was,manifestly adopted to protect the property from capture by the enemies of Spain. Nor was it an infringement of the treaty with Spain, adverted to in the decree of condemnation, which requires only certificates of the several particulars of ti.e cargo, and the place whence the ship sailed. As to the owners oí cargo, the language of the treaty is, that “ if any one shall hint it fit or advisable to express in the said certificates the “ person to whom the goods on board belong, he may freely do “ so thus leaving to the individuals concerned the full exercise of their discretion upon this point.
It is objected that the brig, in which the goods insured were transported, had on board goods contraband of war. That fact is affirmed in an official representation made to the judge, by Don Jose Mendose, captain of the port of Caboroxo, into which the prize was carried ; and also in the libel or petition of the captor, praying for condemnation ; but it is not made the basis of the de cree of condemnation, nor does the decree take any notice of the charge, other than by an enumeration of a few articles, having this character, among those which are condemned. The seventeenth article of the treaty between the United States and Spain, which is the only article alluded to in the decree, has no reference whatever to the case of contraband goods, which is made the subject of specific stipulations in the sixteenth article. If there is however competent proof that the vessel had goods contraband by the law of nations, or by the treaty with Spain, if she had been bound to an enemy’s port; yet in this case she sailed from a Spanish port, not to a port of the enemy of Spain, but to that of a neutral, to which munitions of war may be innocently carried. It is not pretended that the contraband goods on board, if there were any, were the property of the plaintiffs. The vessel belonged to Gordon the insurer, and they must have been received by his privity or that of the master appointed by him, and in his employment. Besides, contraband articles found onboard a ship aic* alone liable to confiscation; innocent goods are not affected, unless they belong to the same owner. The Staadt Embden, 1 Rob. Adm. Rep. 26.
[188]*188Another ground taken in defence is, that the property was coil-demned for a violation of the treaty with Spain, and that upon this point the decree of condemnation is conclusive.
That the sentence of a foreign court of admiralty, in a case within its jurisdiction, is conclusive evidence not only of the right which it establishes, but of the fact which it directly decides, is a position which has been so uniformly sanctioned by the highest and most respectable tribunals, that it cannot now be controverted. But the sentence adduced does not decide that there had been^any violation of the treaty. The Judge states that, having before him the seventeenth article of the treaty of friendship, limits, and navigation between Spain and the United States of 1795, confirmed also by the new treaty of February 1819, and having present the thirty second article of the last ordinance about privateers, and finding the proof of property in the cargo insufficient, he condemned it. That article of the treaty is found, upon examination, to require no proof of property except of the vessel, which, without such proof, is made liable to condemnation. But the vessel was in this case acquitted. By the treaty, free ships made free goods, with the exception only of goods contraband of war; and no document is therefore required proving-property in the cargo, unless as is provided by the seventeenth article, as before stated, any one shall think it fit or advisable to state to whom the goods on board belong, in the certificates containing the several particulars of the cargo, and the place whence the ship sailed. The sentence does not in terms profess to condemn the cargo for a violation of the treaty ; nor does it decide any fact, which amounts to such violation. What may be the nature of the thirty-second article of their ordinance about privateers, adverted in the sentence, does not appear ; and if it did, it could have no influence upon the decision of this cause. The port captain it is true, in his official communication, informs the Judge, and the captain of the privateer in his libel or petition avers, that certain portions of the cargo were not set forth or specified, as required by the before mentioned seventeenth article ; but these, allegations not being directly supported by the sentence, or even deducible from it upon any fair construction,, cannot be considered as verified by competent proof.
[189]*189But admitting that the cargo was condemned, because certain parts of it, other than that belonging to the plaintiffs, had not the certificates required by the treaty ; this fault or deficiency does not appear in any degree imputable to the plaintiffs; or thatdhey had any interest in, or any connexion with, the merchandize stated to have been omitted in the manifest. The vessel belonged to Gordon, the insurer. The master was appointed by him, and under his control.
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Weston J.
The policy executed by Gordon is very brief in its terms ; but with regard to risks, it expressly assumes such as are contained in all regular policies of insurance, to be adjusted according to the rules established at Lloyd’s in London, or at the regular insurance offices in the United States. It was a policy therefore against what are called the usual risks. The form of of the policy now used in London, and which it seems has varied very little for two hundred years, [Park 14] embraces losses arising from “ men of war, enemies, pirates, rovers, takings at “ sea, arrests, restraints, and detainments of all kings, princes and people of what uation, condition, or quality soever.” These risks among others are to be found also in the common printed forms in use in this country. Loss by capture then, being one of the usual risks contained in regular policies, is clearly included in the one in question. And we are not at liberty to vary a contract, the terms of which are thus explicit, from any considerations drawn from the amount of the premium, or from the letter of the assured to their correspondent, adduced to shew their sense of the contract, written with a view to obtain indemnity from another quarter, in which they were however unsuccessful. In this letter, they speak of the policy of Gordon as protecting them against sea risks only ; but in the instrument executed by the defendants, upon which this action is brought, loss by capture is contemplated as being within this policy; and they engaged to hold themselves responsible for the amount, if Gordon does not pay on presentation of regular documents, proving the condemnation or loss. But what risks were in fact assumed must be determined from the policy itself, which we are satisfied includes, among others, the risk of loss by capture.
The property captured was proved at the trial to have belonged to the plaintiffs; and that it exceeded in value the amount insured by this policy. But it is contended that the contract cannot be enforced against Gordon or against the defendants, who have assumed his responsibility, because the goods onboard were not shipped in the name of the true owners. This fact is distinctly [187]*187noticed in tlie policy and the property thus covered is expressly insured. No law of the United Stales is violated by a measure of this sort, which was,manifestly adopted to protect the property from capture by the enemies of Spain. Nor was it an infringement of the treaty with Spain, adverted to in the decree of condemnation, which requires only certificates of the several particulars of ti.e cargo, and the place whence the ship sailed. As to the owners oí cargo, the language of the treaty is, that “ if any one shall hint it fit or advisable to express in the said certificates the “ person to whom the goods on board belong, he may freely do “ so thus leaving to the individuals concerned the full exercise of their discretion upon this point.
It is objected that the brig, in which the goods insured were transported, had on board goods contraband of war. That fact is affirmed in an official representation made to the judge, by Don Jose Mendose, captain of the port of Caboroxo, into which the prize was carried ; and also in the libel or petition of the captor, praying for condemnation ; but it is not made the basis of the de cree of condemnation, nor does the decree take any notice of the charge, other than by an enumeration of a few articles, having this character, among those which are condemned. The seventeenth article of the treaty between the United States and Spain, which is the only article alluded to in the decree, has no reference whatever to the case of contraband goods, which is made the subject of specific stipulations in the sixteenth article. If there is however competent proof that the vessel had goods contraband by the law of nations, or by the treaty with Spain, if she had been bound to an enemy’s port; yet in this case she sailed from a Spanish port, not to a port of the enemy of Spain, but to that of a neutral, to which munitions of war may be innocently carried. It is not pretended that the contraband goods on board, if there were any, were the property of the plaintiffs. The vessel belonged to Gordon the insurer, and they must have been received by his privity or that of the master appointed by him, and in his employment. Besides, contraband articles found onboard a ship aic* alone liable to confiscation; innocent goods are not affected, unless they belong to the same owner. The Staadt Embden, 1 Rob. Adm. Rep. 26.
[188]*188Another ground taken in defence is, that the property was coil-demned for a violation of the treaty with Spain, and that upon this point the decree of condemnation is conclusive.
That the sentence of a foreign court of admiralty, in a case within its jurisdiction, is conclusive evidence not only of the right which it establishes, but of the fact which it directly decides, is a position which has been so uniformly sanctioned by the highest and most respectable tribunals, that it cannot now be controverted. But the sentence adduced does not decide that there had been^any violation of the treaty. The Judge states that, having before him the seventeenth article of the treaty of friendship, limits, and navigation between Spain and the United States of 1795, confirmed also by the new treaty of February 1819, and having present the thirty second article of the last ordinance about privateers, and finding the proof of property in the cargo insufficient, he condemned it. That article of the treaty is found, upon examination, to require no proof of property except of the vessel, which, without such proof, is made liable to condemnation. But the vessel was in this case acquitted. By the treaty, free ships made free goods, with the exception only of goods contraband of war; and no document is therefore required proving-property in the cargo, unless as is provided by the seventeenth article, as before stated, any one shall think it fit or advisable to state to whom the goods on board belong, in the certificates containing the several particulars of the cargo, and the place whence the ship sailed. The sentence does not in terms profess to condemn the cargo for a violation of the treaty ; nor does it decide any fact, which amounts to such violation. What may be the nature of the thirty-second article of their ordinance about privateers, adverted in the sentence, does not appear ; and if it did, it could have no influence upon the decision of this cause. The port captain it is true, in his official communication, informs the Judge, and the captain of the privateer in his libel or petition avers, that certain portions of the cargo were not set forth or specified, as required by the before mentioned seventeenth article ; but these, allegations not being directly supported by the sentence, or even deducible from it upon any fair construction,, cannot be considered as verified by competent proof.
[189]*189But admitting that the cargo was condemned, because certain parts of it, other than that belonging to the plaintiffs, had not the certificates required by the treaty ; this fault or deficiency does not appear in any degree imputable to the plaintiffs; or thatdhey had any interest in, or any connexion with, the merchandize stated to have been omitted in the manifest. The vessel belonged to Gordon, the insurer. The master was appointed by him, and under his control. If he received goods, without the proper certificates required by treaty, and thus occasioned the loss which accrued, it could have no tendency to exonerate Gordon from his liability to the plaintiffs, who had done nothing subjecting their merchandize to forfeiture.
It is urged that, if the defendants are liable, this action was prematurely brought ; inasmuch as regular documents, proving the condemnation, had not been presented to Gordon. It appears that the sentence of condemnation was finally confirmed on the eighteenth of July, 1822 ; and that an abandonment was offered to Gordon in the succeeding month of Jlugust, which was seasonably made ; as the loss then remained total, and has ever since so. continued. Dorr v. New Eng. Ins. Co. 11 Mass. 1. Marshall, 489. Gordon, the owner of the brig, must have been apprized by the master appointed by him of what had happened ; and may well be presumed to have been in possession of documents, proving the condemnation, long prior to the action, which was not instituted until more than a year subsequent to the abandonment. It appears further that, before the action was commenced, copies of the protest and of the translation of the sentence of condemnation were left at Gordon’s house, he being then at sea. Upon these facts, we are of opinion that this objection to the verdict cannot be sustained.
With regard to the consideration for the guaranty entered into by the defendants, the statute of frauds, according to the construction which it has received in Massachusetts and in this State, does not require that the consideration for the collateral under taking should appear in the note or memorandum, signed by the party to be charged. Upon this point, we are fully satisfied with the reasoning and authority of the case of Packard v. Richardson [190]*19017 Mass. 122. The consideration therefore may be proved by parol. Keating, the agent of the plaintiffs, testifies, that it was forbearance on the part of the plaintiffs. This, though a good consideration, as it is conceded, where the party had a right of action, was, it is urged, insufficient in this case ; because the plaintiffs had then no right to require or to enforce payment.
We have no process in this State, by which a party can legally arrest his debtor, for the purpose of security, before his demand has arrived at maturity; but such process may exist in other countries; and in regard to strangers and(transient persons, may be found essential in the administration of justice. The forbearance of a right to prosecute or arrest for further security would unquestionably form a sufficient consideration for the undertaking of the defendants ; but it must appear that such right existed. This would depend upon the laws of the Spanish colony of St. Domingo; and foreign laws are to be proved as facts. Mostyn v. Fabrigas, Cowper, 174. Talbot v. Seaman, 1 Cranch, 38. Church v. Hubbart, 2 Cranch, 237. Keating further testifies that he was directed to arrest Gordon ; that he should have done so, but for the interposition of the defendants,who, to induce the forbearance of any prosecution against Gordon, after several days deliberation, entered into the guaranty ; whereupon he desisted from taking any measures to arrest him. By the terms prosecution and arrest, we must understand measures authorized by law. The defendants were upon the spot; they took time to deliberate ; and they had it' in their power to acquaint themselves with the course of legal proceedings in that jurisdiction. We do not at this time-decide that, upon this evidence, the jury might not have been warranted, under the direction of the court, in inferring that the plaintiffs had a right thus to proceed, by the laws of the then Spanish colony of St..Domingo. But this fact has not been established by their verdict; nor has it been directly proved ; we are therefore of opinion that the verdict, returned for the plaintiffs, must be set aside. By the case reserved, it is agreed that if upon éither of the points taken, the law is with the defendants, the verdict is to be set aside, and the plaintiffs to become nonsuit. The point raised by the defendants, to which we have last advert[191]*191ed, is, that their engagement was without consideration. It appears to us that the facts, necessary to constitute such consid-ration, have not been sufficiently established ; but as we think it highly probable, from the evidence in the case, that such facts existed, we do not feel warranted in deciding that this engage» ment was without consideration, without affording an opportunity for a further and more distinct examination of this question. We do not therefore order the plaintiffs to he called ; but the ver» diet is set aside, and A new trial granted-.