cargo chiefly belligerent, had thrown papers over The The farther proof in the claims 108, 109,141, and 122, consists of affidavits to the proprietary interest of the claimants; of copies of letters, in some instances ordering the goods, and in others advising of their shipment; and of copies of invoices-all properly authenticated. This proof was satisfactory, and the order for restitution made upon it was the necessary consequence of its admission." a M. Bonnemant, in his commentary upon DeHabreu, makes the following remarks: "Parmi les pièces dont un navire doit être pourvu pour la régularité de sa navigation, il en est de deux sortes; les unes servent à prouver la neutralité du navire, les autres celle de la cargaison." "Celles relatives à la cargaison sont les connoissments, les polices de chargement, les factures. Toutes ces pièces font pleine et entière foi, si elles sont en bonne et due VOL. III. 8 forme Toute ne sont pas d'ab- "La preuve de la neutra 1818. The Friendschaft. 1818. The Friendschaft. In the claim to No. 118, made for Joseph Winn, the farther proof was not so conclusive. It consisted of the affidavit of the claimant to his proprietary interest, and to his character as a domiciled Portuguese subject, residing and carrying on trade in Lisbon. The affidavit was made in London on the 29th day of June, 1815, but states the claimant to have been at his fixed place of residence in Lisbon, at the the time of the capture, where he had resided for several years preceding that event, and where he continued until the 12th of June, 1814, when he left lité est toujours à la charge du "Cette preuve ne peut et çue "C'est au capteur à prouver demontrer la fraude et la simulation. "Quant aux irregularités que peuvent contenir certaine pièces de bord, ce n'est pas à des omissions de forme usitées que les tribunaux doivent s'attacher, c'est par l'ensemble des pièces, et sur tout par la vérité des choses qui en résulte, qu'ils doivent se déterminer; l'expérience n'a que trop démontré que la plus grande régularité dans les papiers mas quoit souvent la fraude et la simulation, nimia precautio dolus." Bonnemant's Translation of De Habreu, Tom. 1. p. 28. (1) The French prize practice not allowing farther proof, but acquitting or con. demning upon the original evidence consisting of the papers found on board and the depositions of the captors and captured. The only exception to this rule is where the papers have been spoliated by the captors, or lost by shipwreck, and other inevitable accidents. Valin, Traité des Prises, ch. 15. n. 7. But the Spanish law admits of farther proof in case of doubts arising upon the original evidence. De Habreu, part 2. ch. 15. Lisbon for Bordeaux, and has since arrived in London on mercantile business. That he is still a domiciled subject of Portugal, intending to return to Lisbon, where his commercial establishment is maintained, and his business carried on by his clerks until his return. To a copy of this affidavit is annexed that of Duncan M'Andrew, his clerk, made in Lisbon, who verifies all the facts stated in it. This property was also restored by the sentence of the district court, and affirmed in the circuit court. On an appeal being prayed, the circuit court made an order, allowing this claimant to take farther proof to be offered to this court. The proof offered under this order consists of a special affidavit of one of the shippers, of sworn copies of letters ordering the shipment, and of the invoice of the articles shipped. This claim not having been attended, when the sentence of restitution was made, with any suspicious circumstances, other than the absence of papers which have since been supplied, and which was probably the result solely of inadvertence, this court is of opinion, that the farther proof now offered, ought to be received. It certainly dissipates every doubt respecting the proprietary interest. The only question made upon it respects the neutral character of the claimant. It has been urged, that the native character easily reverts, and that by returning to his native country, the claimant has become a redintegrated British sub 1818 The Friendschaft. having a neu A merchant tral domicil at the time of cap ture, does not lose it by visit ing his native country after wards, mimo revertendi, and leaving, his commercial establishment to be carried on by his clerks in his absence. 1818. The Friend schaft. British subjects resident not retain their ter, but,acquire that of the country where they reside. ject. But his commercial establishment in Lisbon still remains; his mercantile affairs are conducted in his absence by his clerks; he was himself in Lisbon at the time of the capture; he has come to London merely on mercantile business, and intends returning to Lisbon. Under these circumstances, his Portuguese domicil still continues. But, it is contended, that the connection between Britain and Portugal retains the British character, and the counsel for the captors has enumerated the privileges of Englishmen in that country. These privileges are certainly very great; but, in Portugal do without giving them a minute and separate examinanative charac- tion, it tion, it may be said, generally, that they do not confound the British and Portuguese character. They do not identify the two nations with each other, or affect those principles on which, in other cases, a merchant acquires the character of the nation in which he resides and carries on his trade. If a British merchant, residing in Portugal, retains his British character when Britain is at war and Portugal at peace, he would also retain that character when Portugal is at war and Britain at peace. This no belligerent could tolerate. Its effect would be to neutralize the whole commerce of Portugal, and give it perfect security. Sentence affirmed. (CHANCERY.) M'IVER, assignee, &c. v. KYGER et al. Bill for the specific performance of an agreement for the exchange of lands. The contract enforced. 1818. M'Iver V. Kyger. THIS cause was argued by Mr. Taylor for the ap- Feb. 4th. pellant, and by Mr. Swann for the respondents. Mr. Chief Justice MARSHALL delivered the opi- Feb. 10th. nion of the court. On the 25th day of March, 1789, George Kyger and Josiah Watson entered into articles for the exchange of a lot in Alexandria, estimated at $2,200, for certain lands in Kentucky, the property of Watson. The lot was to be conveyed to Watson within eighteen months from the date of the contract; in consideration of which, Watson stipulated to convey to Kyger such lands, surveyed and patented for him, on the waters of Elkhorn in Kentucky, as the said Kyger should select, to the extent of $2,200, at one dollar per acre, as soon as Kyger should make his election, and furnish a plot and survey of the lands chosen. On the 23d day of December, 1790, a second agreement was entered into, which, after reciting the terms of the first, states, that George Kyger had represented to the said Josiah, that the land on Elkhorn was not so valuable as Kyger had supposed; and had proposed to extend the time for surveying |