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fervices, on which much argument has been beftowed; I mean those referred to in Lord Keith's letter ; in which Lord Keith acknowledges, that thefe tranfports had contributed to the furrender. In the first place, a letter of that kind, written in the moment of victory, fhould not be too strictly interpreted as conveying any opinion of the writer, on the mi nute parts of the transaction: Taking it, however, to be as argued, that it does fhew his fentiments at that moment on the matter; it is by no means conclusive upon the question. It might be erroneous in fact; much less can it be confidered as conclufive in point of law. Lord Keith is not the only party on the facts, it is not conclufive against others: and on the law, it is not conclufive against himself; for if he should be found to be mistaken, as to the legal effect of such services, who would fay that he would be concluded by this admiffion? However, looking at the letter carefully, I do not fee that Lord Keith might not have written just in the fame manner to a fleet of transports doing their duty with alacrity and zeal, as a general expreffion of thanks for the performance of those services, in which they had been respectively employed.

-

Upon the whole of these facts, I feel myself obliged to pronounce, that it has not been fhewn that these fhips set out in an original military character; or that any military character has been fubfequently im preffed upon them by the nature and courfe of their employment; and therefore, however meritorious their services may have been, and however entitled they may be to the gratitude of their country, it will not entitle them to fhare in this valuable capture.

The

CAPE OF GOOD
HOPE.

Dec. 10th,

1799.

Dec. 16th, 1799.

Commiffion of appraitement and fale is an inftrument, in

the firft inftance,

taken out by captors: They primarily anfwerable for the expence, &c.

THE FRAU MARIA, JANSEN Mafter.

THIS was a cafe of a motion for a new commiffion of appraisement on the part of the claimant, on fuggeftion that the former commiffion had not been executed by the marshall; as he had refused to return the commiffion till his expences were paid. It was faid, that the commiffion of appraisement was an instrument taken out by the captors, and therefore that the expences ought to be paid, in the first inftance, by them; that the cause of this delay had been unknown to the claimants, that they would have been ready at all times to advance the expences to have prevented the delay, by which the cargo had sustained a deterioration of 40 per cent.

The King's Advocate refifted the motion, fayingThat the delay complained of could not have happened but by the laches of the claimants, who were the perfons to look to the due execution of the commiffion.

Court. It must be allowed, I think, that the parties in this cafe are, in pari delicto: but I am defirous of laying down fome rule to prevent the fame inconvenience from happening in future. I am of opinion, that the captor is the perfon who is to make the pay ment in the first inftance. He is the perfon who puts the commiffion into the hands of the officer,

and

and defires him to execute it. By whom are the other fees of office paid?

Registrar. By the captor.

Court. Then what ground is there to pretend there fhould be any diftinction? That the claimant may be ultimately interested, is a matter of future confideration. It may be proper that the captor fhould be indemnified; but I am of opinion that the captor is answerable in the first instance, and I cannot conceive that the marfhall is bound to look elfewhere. Where it is done for the accommodation of the claimant, that will be a matter to be fettled between them but I fhall certainly hold, that the captor is liable for the expences in the first inftance, though they may be ultimately to be divided between both parties. I fhall direct a new appraisement in this cafe; and as the commiffion is prayed by the claimant in this instance, it must be at his expence but in future cases it must be as I have intimated.

:

The

FRAU MARIA.

Dec. 16th,

1799.

THE SPECULATION, FEROE Master. HIS was a case of a Danish veffel, taken on THIS voyage from Dunkirk to Bourdeaux, 13th 1799; and claimed, together with the cargo, Lund, described in fome of the papers as

ter of the veffel.

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June

for

prefsly forbidden to Neutrals,

by French ordi

nance. Mif

maf

conduct of cap

tors, as to tak

ing depofitions. Reftitution.

forfeited.

For the captors, the King's Advocate ftated-That Captors expences the fhip appeared to have been carrying on the coast

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The SPECULATION.

Dec. 16th,

$799.

ing trade of France; a trade, not only generally
forbidden, but exprefsly prohibited to neutral ships
by the ordinances of France, which have iffued during
this war, that she would therefore come under the
character of an adopted French fhip; and in regard
to the cargo, that there was fuch a variation refpect-
ing it, that it must of courfe go to farther proof; the
bill of a lading being avowedly colourable, describ-
ing Lund as fhipper, whilft he himself on his ex-
amination describes the cargo to have been fhipped
by a French merchant; and, as one of the mariners.
depofes, . Mr.
of Dunkirk was lader and

owner."

For the claimant, Laurence contended-That the evidence of the mariner, who gave this account of this property, was not entitled to the attention of the Court; that he was not examined till three weeks after the other depofitions had been brought in; that he had, in the mean time, been a week on board the privateer, and at laft only ventured to speak to his belief, without affigning any reafon for it,

[Court. I perceive thefe examinations are taken at Jerfey; the commiffioners muft understand that this is not the proper mode of proceeding. After the depofitions have been taken and tranfmitted, the commiffioners are not to go on examining afterwards; neither is it proper that the captor fhould take out the whole of the crew, and then come in afterwards

with

with a fubfequent examination (a)-I fhall pay no attention to this man's evidence.]

Counfel. With refpect to the fhip it has not been held in the prefent war, that the mere circumftance of being engaged in the coafting trade of the enemy, does amount to that adoption, which will subject the

The SPECULATION,

Dec. 16th,

1799.

(a) The 23d fection of the prize act provides for the speedy expediting of the process of prize causes, in these terms;-And for the more speedy proceeding to condemnation, or other determination of any prize ship, &c. "That the Judge of the High Court "of Admiralty, and of any other Court of Admiralty, which "fhall be authorized thereto; or fuch perfon or persons who shall "be by them commiffioned for that purpose, within five days after "request made to him or them for that purpose, shall finish the "usual preparatory examinations of the perfous commonly ex"amined in fuch cafes, &c."

And the 2d and 3d articles of inftructions to cruizers direct, That the commanders of fhips and veffels, fo authorized as afore faid, shall bring all ships, veffels, and goods which they shall seize and take, into fuch port of this our realm of England, or fome other port of our dominions as shall be most convenient for them, in order to have the fame legally adjudged.

3d article, That after fuch fhips, veffels, and goods fhall be taken and brought into any port, the taker, or one of his chief officers, or fome other perfon prefent at the capture, shall be obliged to bring or fend, as foon as poffibly may be, three or four of the principal of the company (whereof the mafter, mate or boatfwain, to be always two) of every ship or vessel so brought into port before the Judge of the High Court of Admiralty, &c. or his furrogate, or fuch perfons as shall be lawfully commiffioned in that behalf, to be fworn and examined upon fuch interrogatories as fhall tend to the difcovery of the truth, &c.

For the whole of the inftructions, fee Appendix.

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