This case depends on a mere question of fact. After a careful examination of the evidence, the majority of the court are of opinion, that the decree of the circuit court ought to be affirmed. It is deemed unnecessary to enter into a formal statement of the grounds of this opinion, as it is principally founded upon the same reasoning which was adopted by the circuit court in the decree which is spread before us in the transcript of the record
After stating the facts of this case, the learned judge proceeds; 'Since I have had the honour to sit in this court I have prescribed to myself certain rules, by the application of which, my judgment, in cases of this nature, has been uniformly governed. 1st. Where the claimants assume the onus probandi (as they do in this case) not to acquit the property, unless the defence be proved beyond a reasonable doubt. 2d. If the evidence of the claimants be clear and precisely in point, not to indulge in vague and indeterminate suspicions, but to pronounce an acquittal, unless that evidence be clouded with incredibility, or encountered by strong presumptions of mala fides, from the other circumstances of the case.' He also alludes to the absence of documentary evidence to support the defence set up by the claimants as affording an example of the application of these rules, as well as of another rule equally important. 'What strikes me as decisive against the defense is the entire absence of all documents respecting the cargo. Bills of lading, letters of advice, or general orders, must have existed. If the cargo had been destined for Boston only, there would not have been so much difficulty. But the defence shows its destination ultimately for Liverpool. Where, then, is the contract of affreightment, the bills of lading, the letters of advice, and the correspondence of the shippers, or of Mr. P. Grant? Can it be credible that, without any authority, the master, or part owner of the ship should, on their own responsibility, have gone to Liverpool, without orders or consignment? That from a mere vague knowledge of the wishes of the shippers, they should place at imminent risk the whole property, without written authority to colour their proceedings? There must have been papers. They are not produced. The affidavits of the shippers, of Mr. Grant, of the consignees in England, are not produced. What must be the conclusion from this general silence? It must be, that if produced, they would not support the asserted defence. At least, such is the judgment that both the common law and the admiralty law pronounces in cases of suppression of evidence.'
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