The Sun.
London, England, 1866-06-30 00:00:00

LAW INT.

1.--This Day.

COURT OF ADMIRALTY.
(Before Dr. Lushington).
BANDA AND KIRWEE BOOTY.--JUDGMEN .
Dr. Lushington delivered judgment in this im-
portant case, which has reference to the claims
made by several distinguished officers who had
served in India during the mutiny for a
share in the booty captured at Banda and
d Kirwee. The heirs of the late Lord Clyde
also claimed a share on the ground that as com-
mander-in-chief of the Indian army at the time he
was entitled to the same.
The learned Judge said that he was quite sensible
of the great responsibility imposed on the court in
having to adjudicate on the many conflicting claims
preferred by officers and the troops to share in
which her Majesty had been graciously pleased to
grant, and he would only say that he had given the
subject his best consideration. The Court of
Admiralty had no original jurisdiction on prize
matters, the jurisdiction which it exercised being
derived from the authority of Parliament`and the
Royal prerogative. The learned judge then pro-
ceeded to point out the difference between the law
and practice in regard to naval and military prizes,
and said that, with certain distinctions, both were
based upon association and co-ope ration in capture.
In regard to the navy vessels, assisting others in
" intimidating the foe and encouraging the friends,"
were entitled to participate in the booty results from
capture, although they might not originally have
bemi assigned to that duty. It was, however,
necessary that they should have the captured vessel
in sight. Owing to the different notion of
military service, to terms co-operation and
association had a more stringent signification,
and incidental or casual assistance rendered
would not come within their legal meaning. He
then proceeded to review the claims of Sir Hugh
Rose, Colonel Keatinge, General Roberts, and the
other claimants, and concluded as follows :—" The
rem* of this judgment then is that I declare Lord
Clyde and his staff, personal as well as general, en-
titled to share in this booty captured at Banda and
Kirwee; and, subject to this right, I award the
whole of the booty to General Whitlock and his
forces, including amongst the latter the troops under
Colonel Keating, and any other troops left by
General Whitlock on his march, but who at the
time of the capture formed a portion of his division,
and were still under his command. I disallow all
other claims. The scale upon which the distribution
shall be made to the several ranks is a matter which by
the terms of the order of reference I am precluded
from entering upon. It is hardly requisite for me to
add that the view which I have taken of the whole
matter renders it unnecessary for me to consider
any booty captured by the forces of Sir H. Rose or
the late Sir H. Roberts or any other of the claim-
ants. As to the taxation of costs, lam strongly
of opinion that it will be a saving of much unneces-
sary expense and trouble if each solicitor, instead of
submitting his bill of costs to be taxed in the ordi-
nary manner, item by item, presents his account of
disbursements, counsels' fees, printing, &c., leaving
it to the registrar of the court to award a quantum
meruit, sufficient to cover exrenses out of pocket,
and to afford besides a reasonable remuneration for
professional services. Ido not make a compul-
sory order on this head, but I shall be glad to
see this arrangement accepted; and I direct
that the registrar shall have power, upon appli-
cation by any solicitory, to settle the taxation
of his bill of costs in this general manner.
I know not whether the whole of the booty has yet
been realised, but with a view to prevent any fur-
ther delay in the distribution, I shall recommend to
the Treasury to distribute such portion thereof as it
may be in their power to do, reserving, however, an
adequate sum to meet all possible costs that may
have been incurred, the amount of which I shall be
prepared to advise them if necessary. There remains
the question of costs. If this were an ordinary case
I should hold that those who have preferred claims,
which they have failed to establish, ought to bear
the cost of their experiment. But, considering that
this is the first occasion on which this jurisdiction
has been exercised, considering also the conflict of
opinion amongst the several authorities before whom
the vestion was successively_ brought, and which
led to the reference to this' court, I am not pre-
pared to say that any of the claimants were not
entitled to prefer their claim. I shall, therefore, in
pursuance of the power given me by the Order
in council, direct that the costs of the various parties
who appeared before me shall be paid out of the
fund. I cannot bring this judgment to a close
without observing that I view with regret the die-
appointMenkit must occasion to many gallant claim-
ants who have performed so many noble services
during this mutiny. But, after mostdeliberate con-
sideration, I am well satisfied that my decision is
accordant with the principles observed in cases o
naval capture, and also with the usages which, in
the main, has hitherto obtained in the distribution
of booty. To have carried the doctrine of con -
structive capture to the extent prayed for, would, I
am convinced, have thrown the law and practice
into confusion, have sown the seeds for frequent
litigation, and been detrimental to the interests of
her Majesty's land forces.