"faid Robinett was not confidered as grofsly neg ligent in lofing the long boat by the deponent, it "not being his duty to be on board at that time." I cannot fay that the fact of imprudent conduct, or of negligent conduct, is in any way faftened down on him in this inftance. The next charge is that, "whilst the faid Robinett "was in charge of the fhip, as fuperior officer on board, in Colombo Bay, he one night neglected to "have the yawl hoisted in, as it was his duty to have "done, by which means feven other Lafcar failors "went on fhore and deferted. To this the wit. neffes fay," that although it might have been proper to hoift in the yawl at night, as it is ufually done, "that it is not an invariable rule." The next inftance of neglect is, "That the faid "Robert Robinett, whilst he was in charge of the "faid fhip Exeter, as the fuperior officer on board, as the lay at Colombo, on or about the 14th day of the faid month of February 1797, let go a fecond "anchor; that Capt. Whitford the commander, "when he came on board the faid fhip on that day, "obferved that the fame croffed the cable, by which "the faid fhip was originally riding, and ordered the "faid anchor to be immediately weighed; that the "faid cable upon its coming in, was found fo much chafed from want of proper fervice on it, as 'to « render it absolutely neceffary to cut it off, about "ten fathom from the clinch; that it was the duty "of the faid Robert Robinett, as the officer in charge, to have feen that proper fervice had been put on "the faid cable, and that he was guitly of a grofs " a& The EXETER. Dec. 10th, 1799. The EXETER. Dec. 10th, 1799. "act of negligence on fuch occafion, and thereby greatly endangered the fafety of the faid fhip, and "the property of the owners; that if the said ship "had fuftained any damage by the breaking of the "faid cable, arifing from its being chafed as afore"faid, the underwriters would have been exonerated "from payment thereof under the policy of in"furance." The only witnefs that speaks to this article is Urquhart, and the account which he gives is very material. He fays, "That it was the duty "of Robinett, as the officer in charge, to fee that 66 proper fervice was put on the cable which he "believes was done at first; but as the producent "Robinett was then the only officer on board except "the chief mate who was confined by the captain, "and this refpondent who was ill, it was impoffible "for him to pay conftant attention to the cable, "and the accident of the chafing was owning to the " inattention of the black gunner who was in charge "thereof, whilft the producent went to fleep." Ad verting, as I must always do, to the circumstance of Mr. Robinett being the only officer on board, and to the furplus duty that he had to perform in confequence of being fo; and finding that the black gunner was on that account appointed to affift him, and that the chief imputation thrown on him was, that he did not fee that the black gunner did his duty whilst he went to rest, it is impoffible to say that this perfon is affected with the charge of negligence on this account. I come next to the charge of difobedience, which I have faid is of a very malignant nature in the eye, of of the Court, and which the Court would upon every confideration be difpofed to difeountenance. But the only command upon him that I fee, which was disobeyed, was an order to leave the fhip: and although I do not fay, that a master has not a right to give a discharge, and if the person so discharged refuses to quit the fhip, that he might not turn him out, being refponfible for his conduct in fo doing; yet this must always be understood to be fubject to responsibility on the question of the propriety of the discharge; because it could never be maintained in the English maritime service, that if a mafter chose to turn a mariner on fhore, without cause, in a foreign country, the mere refufal to go would of itself juftify an improper difcharge. The propriety of the refufal in fuch a cafe muft depend entirely on the propriety of the order, and that must depend almost entirely upon its neceffity, for little lefs than abfolute neceffity is required to bear out fuch an order. That a perfon fhould be a little averse to be turned afhore on this remote island, which though in English poffeffion is in truth a Dutch settlement, cannot be matter of furprize: it is easy to fay, that it was his duty to obey, and fight his way home, and feek redress from a court of justice. here; but that the perfon fhould feel a little unwilling to be turned adrift, in this remote and foreign fettlement, is not to be wondered at; and I cannot think his expreffing a difinclination can be confidered. to constitute an offence of mutiny or pofitive difobedience. On the whole, I am of opinion, that the evidence of Captain Whitford is not admiffible, and that on the evidence of the other witneffes I am in no degree warranted VOL. II. T The EXETER. Nov. 28th, 1799. The EXETER. Nov. 28th, 1799. warranted to say that the charges fet up as the defence to this fuit are made out. I muft, therefore, pronounce for the demand of wages, and the expences which have been incurred in the course of this fuit to recover them. Dec. 10th, 1799. THE CAPE OF GOOD HOPE and its Dependencies. Claim of joint THIS eapture, by Eaft India fhips car HIS was a cafe of an allegation given on the part of the Admiralty, claiming an interest in the rying troops to capture of the Cape of Good Hope, in virtue of feveral Hope, and affert- non-commiffioned Eaft India fhips, afferted to have tributed to the affifted in that enterprize. ing to have con capture, by in timidation occafioned by their appearance, not allowed: Na ture of the asso ciation by which transports can entitle themfelves, as joint eptors. In fupport of the allegation, the Advocate of the Admiralty and Laurence. It is fcarcely neceffary to call the attention of the Court on this queftion to any other evidence than the letter (a) of Lord Keith, written in recenti facto, which acknowledges in the (a) "To the officers and feamen of the honourable company's fhips in Symons Bay. "However unneceffary it may appear to true Britons to thank them for fervices rendered to their country, yet the particular fituation of the Admiral must excufe his doing fo, because he feels himself perfonally obliged by the ready attention of the officers and feamen of the India fhips, in affifting their brethren fo effen tially, as greatly to contribute towards the fortunate event of the reduction of this valuable colony. "Monarch, Symons Bay, 16th Sept. 1795.” fulleft fulleft terms the fervices of these ships, and the great affiftance they afforded towards the reduction of the colony. The terms of this letter are fo ftrong, and go fo directly to fupport the fubftance of the demand, resulting from the actual affistance afforded by these ships, that it is hardly neceffary to detail more at large the nature of the fervices, and the particular advantages that were derived from them. The immediate effect of their affiftance will be found, however, stated more particularly in the letter written from General Craig, in these terms: "On the one hand as the enemy appears numerous, and difpofed to an obftinate defence, for which they had ample time to make the best preparations, I could not but be fenfible that the force under my command was, in point of numbers, inadequate to the attempt of reducing them." And again, "In a conference with Sir G. Elphinstone, on the 2d of Sept. it was agreed to wait fix days longer for the poffibility of the arrival of General Clarke, and that if he did not appear by that time, I should then advance under every disadvantage of numbers and fituation, try the fortune of an attack, which however hazardous, we deemed it our duty to make, before the total failure of our provifions put us under the neceffity of feeking a supply elsewhere. On the morning of the third, however, the enemy encouraged by the little fuccefs which had attended our attempt on the firft, meditated a general attack on our camp, which, in all probability, would have been decifive of the fate of the colony. They advanced in the night with all the strength they could muster, and with a train of not less than eighteen field pieces; fome movements which had been ob The CAPE OF GOOD Dec. 10th, 1799 |