The Sun.
London, England, 1813-11-20 00:00:00

LAW IN'II;LLIGENCE.

COURT OF KIN '. BENCIL. Nov.

EXECUTOR. O?4.ADMIItII. DRURY v. TLIE EVE-
CUToR 'Or LoRD GA,RpNLII.
This was an action brought to,try the right to
certain prize-motiey. At the tt'ial before Lord
ELLIttiBUROUGU,' a verdict waf, taken for the
plaintiff; smbject to the opnonn of the Court; on
a case_ to the-`following effect :—Lord Gardner
was Commander in Chit!' of his ;Majesty's ships
at Cork, and upon. the-coast Of Ireland, in the
'beginning- of the year 1805. In February of that
year, he gave orders to Captain Lake, of the To-
pate frigate, .to go and look' oat for the Jamaica
convoy, &c. and afterwatds she was to cruise six .
weeks within certain limits. After site had been
oat some tnne, she took a prize, and brought her
into Cork. In the month of March, 1805, Lord
Gardner received orders to take the command of
' the 'Channel fleet, and to deliver up to Rear-Ad-
miral Drury the command of tl)e squadron sta-
-eibneit at Cork. Lord Gardner accordingly dim
ruled the Ruth-Admit-ill to proceed immediately
to Corl;, and on his arrival to take under his
command the ships named in the margin, of
which Ow Topaze was one. In the order from
the Admiralty, Lord Gardner was directed to shift
his flag board any frigate he chose, and o•
proceed in her with all dispatch to Plymouth. In
conseqUence, his Lordship made choice of the
Topaze, and in her arrived at Plymouth. On his
arrival there, he wrote a letter to Capt. Lake,.
stating that he tool the authority of the Lords
Commissioners of the Admiralty to direct him to
cruise a week to the westward, in order to pro-
*tect 'the Sorinam convoy ; mid after that, to cruise
in - pursuance of his former atlers. After the
week, had expired, the Topaze, ni.nle two cap-
, tures, the one within the limits of the Cork sta-
tion, the other without the liMits of the station,
but after a choice ; 'it . Was not found %limiter the
chacP began within the limits of the- station or
not. The question in this-case was, whether Ad.-
miral Drury was entitled tO the flag-tiflicer's
eighth Of those prizes, or of either of them ; and
the verdict was to be entered according to the
judgment of the Court.
Mr. GIFFARD stated, that be had to contend on'
• the part of the personal representatives of Ad-
miral. Drury, that he was entitled to the Flag
. Officer's eighth in both those prizes— After the
decisions of Nelson v 'Tucker, 4 East's tieports,
238,.and Keith v. Pringle, 4 East's Reports, 262,'
it could not• be queStioned but that commander,
after his appointment, was entitled to his share of
all prizes taken by vessels under his command,
, though acting under the Orders of his predecessor.
He; thought his Learned Friend would concede
this. point, and also that immediately on Lord
Gardner's giving up his command to. Admiral
Drury, he ceased to have any commit! over the
ships on, the Cork station. The question would,
'therefore, be, what was the effect of the or-
der
,siven. by Lord Gardner to Captain Lake
Plymouth 1' If Lord Gardner had the power
to order the Topaze to cruise a week for
• the'Sotrinaiti convoy, yet as he ordered her
cruise in pursuance of- her former or-
deri, she most by that be supposed to have been
I emitted wider the authority of the Admiral. on
• the Cork station ; and as to any prizes made by
her after the week had expired, and within the
limits of the Cork station, be must be consider-
c(l as entitled to his share. But should it 'he
eo9sidered that the former order was determined
by the ax of time, and that the, order from
Lord'Gardner was to be.cousidered As a new or-
der.; yet, as to the prizes made within the litnits
of fire Cork station, as the Topaze was not Sail-
an independent commission, the A:d-
nitral must be entitled to his share as a flag-of-

fiver.
• Mr. IThaNita, on the -other side, contended,
that Lord Gardner having employed the Topdze
- to convey him to England, she could not be con-
sidered is under the command of Rear-Admiral
Drury, but as being under the immediate coin-
' mud of his Lord3hip. It was not necessary for
Itim to prove that Lord Gardner ryas entitled ; it
was sufficient for his titrrpose to prove that Ad-
miral Drury was not The first order by Lord
Gardner, by which the Topitze was, after doing
other things, to cruise for hix weeks, was an'ex-
pired order' by:the efflitx of time, and could not
. ,be moved by the sitbseou-nt order of Lord
Gardner. With regard to the prix-.: captured out
of the limits of the Cork station, Admiral Drury
could:not have, any title
The :COurt wished to know, whether it could
• not be found as a fact, •u Nether the eltace of the
one prize did not commence without. the, bounds
of the Cork station ? and, also, whether there
were in fact any. orders front the Lords Commis-
sioners of the Admiralty to Lord_Gardner, direct-
ing him to give Captain Lake'directions to cruize
a week for:the Surinam convoy, and .aftyrwards to
pursue hi's former orders, as his Lordship hail in-
timated in hip letter to Captain Lake ?
It was answered by the two learned Counsel,
that every exertion bad beeu mnde to obtain in-
• formation on these points, but without success,
an.l that they nt.nono hopes'ot being able to obtain
further information.
The Court were of opinion, that Lord Gardner
was dot entitled to any share, because., after the
Topaze had landed hint at Plymouth, he had no
longer any authority .over her, unless he haul fresh
authority from the Admiralty; but nil such au-
thority appeared. Admiral Drury could not be
entitled, except in privity with the orders ; and
therefore, as to time prize, which had been captnred
without the limits of his station, he had no claim.
With regard to the other prize, he was not entitled
in eonSequenee of the first orders given by 'Lord
. Oardner which tvere certainly -expired orders by
the efflux of tinge; but by having succeeded to
the cornintinti, wes entitlol to the flag officer's
Allure of any culture wade within the limits of his
scat ion.
Lord ELLEMIOROUGH, after the Court had given
its opinion, remarked, that thqciute had been ety-
t:etuely well argued---very succinctly and very
ci;stitict.ly,
CZLIMINAL rNFORATATION.
.... A
q, PLTTORNEY-GENPRAL moved for a Rule to
• .::amuse, why a erim:mtl information should
.n-.. fr.: granted against a person of the Minte -of