“It is this day mutually agreed between Mr. Thomas Jennings, master and owner of the good ship or vessel called the Augusta, of the burthen of tons, or thereabouts, now lying at the port of Liverpool, and Messrs. Pedro Martinez & Co., of Havannah, merchants: that the said ship being tight, staunch, and strong, and every way fitted for the voyage, shall with all convenient speed load from the factors of the said Messrs. Pedro Martinez & Co. a cargo of legal goods, which the said merchants bind themselves to ship, not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and furniture; and being so loaded, shall therewith proceed to Gallinas, on the coast of Africa, or so near thereunto as she may safely get and deliver the same; after which she may be sent on any legal voyages between the West Indies, England, Africa, or the United States, according to the directions of the charterers’ agents (restraint of princes and rulers, the act of God, the Queen’s enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever during the said voyage, always excepted.) The freight to be paid on unloading and right delivery of the cargo, at the rate of 100l. sterling per calendar month that the ship may be so employed, commencing with this present month; all port charges and pilotages being paid by the charterers; and days on demurrage, over and above the said laying days, at pounds per day. Penalty for non-performance of this agreement 500l. The necessary cash for ship’s disbursements to be furnished to the captain free of commission: the charterers to be at liberty of closing this engagement at the end of any voyage performed under it, on settling the freight due to the vessel; the captain being indebted to the charterers in certain sums, as per acknowledgment elsewhere, the freights earned by the vessel to be held as general lien for such sums, and in any settlement for such freights, the said advances to be deducted from the vessel’s earnings.”
Mr. Serjeant Bompas. The next document is the acknowledgment—
Mr. Kelly. I do not understand how this addition to the charter-party is evidence.
Mr. Justice Maule. It is at the top of page 6?
Mr. Kelly. It is a memorandum: you propose to read this?
Mr. Serjeant Bompas. Yes.
Mr. Kelly. I do not see the importance of it; but I do not see how it is evidence.
Mr. Justice Maule. Do you object to it?
Mr. Kelly. Yes, my Lord. I will not say any thing of the purpose for which it is offered in evidence, or the object of it. The charter-party is signed by the prisoner at the bar himself, on behalf of the house, as agents for the house of Martinez; but with regard to this document, which my learned friend calls a “memorandum of charter-party,” it is the sheet of paper in my hand, signed “Thomas Jennings,” and signed by nobody else: it is not shown to be in the handwriting of the prisoner, nor ever to have been in his hands, nor that he had any thing to do with it: it is a paper signed by Captain Jennings, and found by Captain Hill on board the vessel, or delivered to him by Captain Jennings on board the vessel. What evidence is that against the prisoner at the bar? I do not know what the paper is worth; but I do not know how your Lordships can admit it. It may be a document treasonable in its nature, or it may have been written the day before it was delivered to Captain Hill.
Mr. Justice Maule. There is some doubt about this: our opinion is, that in the present stage of the case this document is not admissible. There is certainly a reference in the charter-party to the captain being indebted to the charterers in a certain sum, acknowledged elsewhere, the freights being held as a lien against those debts. This charter-party is dated London, 19th of October; the paper proposed to be put in evidence is dated the 21st of October, so that it may not have been in existence at the time when the first paper was signed; it is therefore hardly to be referred to as a document mentioned in the charter-party. Whether something may arise to make the custody of Mr. Jennings evidence against Mr. Zulueta, is a question not now necessary to be decided: but the question is, whether in the present stage of the cause this is admissible. There is a reference certainly to an acknowledgment elsewhere. The proper and natural custody of that acknowledgment would be either the house of Zulueta & Co., or Pedro Martinez & Co.; it is an acknowledgment of a debt to them, and it is found in the custody of the debtor; it is proved by the signature of Zulueta & Co., and they or their principals are the parties who would have the custody of it; they may produce it if they wish to repel any inference which may arise from it, but at present we think it not admissible in evidence.