Smith v. Elder

3 Johns. 105

• Court: New York Supreme Court
• Decided: February 15, 1808
• Status: Published

Opinion

Van Ness, J.

delivered the opinion of the court. A new trial is moved for, in this cause, upon two grounds.

1. That as the plaintiff had declared in tort, the evidence was not sufficient to prove it, inasmuch as an action for a misfeasance, or tort, cannot be maintained for an act done merely in contravention of the revenue laws of Great-Britain.

2. A book entitled, “ The Law of Shipping,” £s?e. was not legal evidence of the statute laws of Great-Britain, and that parol evidence thereof - could not be received.

The defendant cannot avail herself of the first ground, on a motion for a new trial. If the plaintiff has not disclosed, in his declaration, a cause of action, cognizable by this court, that must be taken advantage of, in another way. The judge, at the trial, was authorised to try the issue of fact only, between the parties, and was not to decide, whether the facts set forth in the declaration, if true, would, or would not entitle the plaintiff to judgment, on the return of the postea. But I think, if this objection were permitted to be urged, on a motion for a new trial, that it comes too late. It is not denied that, in consequence of the acts of the defendant, the plaintiff has been greatly damnified; and it is conceded, also, that the courts of Great-Britain would be competent to redress the injury the plaintiff has sustained. But the jurisdiction of this court is denied. The defendant has submitted to the jurisdiction of this court, and by pleading a plea in bar, has, in fact, affirmed it, and is, therefore, now precluded from making the objection. To this point, the cases are full and explicit. (Mostyn v. Fabrigas, Cowp. 72. Co. Lit. 127 b. Barrington v. Venables, T. Raym. 34. Trelawney v. Williams, 2 Vern. 484.) For these reasons, we are of opinion, that, upon the first ground, a new trial ought not to be granted. We wish, however, not to be understood as entertaining the least doubt of our jurisdiction in this case.

The other point is equally clear. It is not necessary, on this occasion, to decide what evidence we should require of the statute law of Great-Britain, or the written law of any other country. Here the defendant has, in writing, confessed that these goods were shipped contrary to the laws of the country to which they were carried. She calls them “ contraband goods,” and stipulates to indemnify the plaintiff for all the injury he may sustain, in consequence of her misconduct.

The master of the ship proves, (and to his testimony there does not appear to have been- any objection at the trial) that it was contrary to the revenue laws of Great-Britain, to import, in American bottoms, goods of the description of those in question, and that such importation would subject the vessel to seizure and condemnation. This evidence of the revenue laws of Great-Britain, in my opinion, was abundantly sufficient, without reading Reeves’ Law of Shipping, in support of it. The court are, therefore, of opinion, that a new trial ought to be .denied.

Rule refused.

(a)

Thompson, J. was absent, from indisposition.