Star.
London, England, 1805-07-17 00:00:00

COUILT OF KING'S BENCH, itTLY ii..

JOIN LIIiDLET, ZIMMERMAN AND OTHERS, V. j. A.
WOOD, Egtz.
The two fira Plaintiii; are merchants in Phiipot-
lane, the Defendant is a Pod Captain in his Ma-
fervice, And commands the Acacia. This ac•
tion was brought to recover a fum for ;prize turnkey,
which the former had been deprived of by the irnprels
of four of the crew of the Regulus privateer, of witich
the Phrintiffs were owners.
The SOLICITOR GENERAL, for the Plaintiffs, fie

ed, that for this veirel they had procured letters of
marque to cruiae againft the French. The aelion
was brought not fo much to obtain a liberal compea-
cation in damages, as that the law on the fubjeft of
the imprefs might he correaly undernoocl, for there
mull be an end of all hontlity by private (hip,: of war
if they were to be deprived of their men at the plea-
lure of every Commander in the King's fervice. The
Commiffioners for executing the office of Lord High
Admiral, had granted a proteElion to ferenty men
on board the Regulus, for the term of three months,
commencing on the 27th of May 1803," and it would
be teen, that thic prisilege was violated within the
petiod Rated. This privateer, falling in with the
Acalla frigate, the Defendant fent his Lieutenant,
Mr. Gtiffiths, on board, in the Bay of Bifcay. Oa
the appeararce of this Officer, the whale crew were
ordered on deck, and fix of them were feleaed to go
in the Acana's boat. Mr. White, who commanded
the Regulus, accompanied them, and in vain (hewed
the prote6lion with which he was provided—two,
however, it was the good pleafure of the Defendant
to refign. After this occurrence, the Regulus joined
company with the Ajax, and cruifing together, th
fell in with a French veld, called le Boneceur, whit'
they captured, and which produced, after all expen•
ces were deciated, nearly toaacol. By the order of
his Majeny, the divition of a prize made by private
(hips of war, was apportioned to each, according to
the number of men of which the crew confined. The

(hare to which thefe four men would have been entit
led, was 1531. ss. t rd ; to which the bounty of three
guineas and a half each being added, the total con-
liituted the claim, on this part of the fpecial damage
of 1721. 19s. I id. The Jury would likewife confider
Cie injury the Plaintiffs fullained by the lots of the
fervice of thefe four men in other refpals, although
it could not be eafily reduced to calculation.
Benjamin Lindley depofed the names of the own-
ers. James Anderfon, from the Admiralty, proved
the letter of marque, and Mr. Reynolds, from the
fame office, proved the identity of the feal, and of
the prote4lion. The latter was read in Court by the
Clerk, and expreiTed that the men were not to be li-
able to the imprefs when on board, or in the fhip's
boat performing their duty to the wird. Among
the names of the mariners prote&ed, there appeared
to be thefe of Hugh Jones, Charles Macarty, John
Whaley, and Edward Hawke. William Wheatley
delivered in the proclamation under which the diati-
bution of prizes was direited.
William Burton, a failor on board the Regulus,
depofed to the detention of the four men, and to the

general natement of fais In the twang Of the.
Learned Count-el.
Mr. ERIKING•IOLI warrant you they kept Ed
ward Hawke ?—A. Yes, be was as good a man as'
a:or among us.
'After a long crofs-examination by Mr. Gtattoirs
it appeared that the Regulus had not her coniplt-
meta of feventy men when the &dad, on which the
Learned Counfel took an objeftion, as the A& of the
33 Geo. H. made fuch proteCtions invalid, unlef, the
number of men were correft.
Mt. ERsttliia obierved, in reply, that the A& jolt
referred to sealed with the lift war, and that the nesk
A& for the fame purpofe, in the prefent war, did
'not commence till the 12th of Auguil. 1803, whereas
this tranfaditic.n happened in the preceding. June, to
that either the one or the other could have no opera-
ting, in• this cattle. _ _

Mr. GARROW faid, that although the Solicitor Ge-
neral was iultrutied to declare his clients had no ava.
ricions views unfriendly to the gallant Officer who
was the Defendant in this caulk, he had preffed the
claim of the Plaintiffs to the utmoft farthing. Ann-
then pretenfion was, that the Plaintiffs were opulent
merchants and (hip-owners, and were defirnus that
the law with refpcEt to naval property (hould be cot-
redly tinderflood, and widely promulgated. Nothing
was more accurately underltood than the law on this
fubjeft ; his Lord(hip had lately given the authority
of his dLMm in the cafe of a Greenland fhip, and what-
ever had his fanFlion, could not fail to be extenfively
circulated. He (hould prove that the men were not
impreffed, that they volunteered or. board the King's
(hip, and received the bounty-money ; and to fob-
nantiate thJe fats, he fhould produce Lieutenant
Griffiths, whom his Learned Friend had prudently
declined to call.

Lieut. John Griffiths did not rupport there infirne-
tions to the Learned Connie!. Ile laid the men were
brought on board, they did not enter immediately,
and he could not tell how loon they complied with
the propofals.
Lord ELLFNSCIROUGH laid, their entering after-
wards could have no influence in the prefent cattle,
and there was no donht the men were irnpreffed.—
The privateer having been thus (Tripped of a portion
of her crew, and the parties having been deptived of
the quantum of reward to which they walla have
been entitled, no doubt could remain on the minds of
the Jury, as to the remuneration they ought to re-
ceive. What the Defendant has done may be cacti-
fable, and the Admiralty perhaps might indemnify
him ; but, in the crefent inflance, this could not be
taken into confederation.—Verdia for the Plaintiffs,
1721. 195. t id.

WILLIAM ROBERTSON Co. JOSEPH SMYTNIE ♦RD )01411
HINCHLITTE. _

The Plaintiff is an infurance-broker ; the Defen-
dants were merchants at Leeds. This aftism was
brought for premiums of jaundice to the amount of
The SOLICITOR GENERAL laid, the Defendant
Hinchliffe had pleaded generally non alLmpii, taut
that Jofeph Smythie had put in a plea in abatement,
on the g:ound that the action ought to have been
brought nor only againtl the Defendants on the re-
cord, but We againft William Smythie his Gm. The
Defendants, who are merchants and fhip-owners,
were proprietor s of the fbips Catherine, Britannia,
and Neptunus. On the lati, they intnred steeds to
the amount of 23391. to Lubec. Soon afterwards
they bated an average of pl. per cent. and the un-
derwriters, being altrmilhed at the perfed condition
of all the other merchandize on board, and that this
alone was damaged, demanded fome explanation
None of the revere remarks that would be made were
at all applicable to Mr. John Hirchlifte (who had put
a fair plea upon the record) ; the matter WAS more
lufpicions, becaufe all the accounts of the average
were I-implied by William Smythie, who was himfelf
on board. By mere accident the Plaintiff difcovered
another broker, of whom the fame lots was claimed,
and to whom limiter pipers were produced. Find-
ing two infurances had been made on the fame vette!,
and the fame interest, what was at firti mere matter
of conjeeture, became certainty, and a paper was
polled up at Lloyds, appointing a meeting between
all brokers who had effected infurances on the Neptu-
nue, for the account of the Defendants. Ten bro-
kers convened on this occafion, and they flared at
each other in the utmoft furprize, until it was mutu-
ally explained, that on this property, amounting to
23391. infurances had been made to the amount of
23,3901. fo that had the Defendants recovered the
average from each of thefe parties, they would have
pocketed nearly la,oool. On this being difclofed,
Smythie Paid, in the total ignorance of the Law, that
he had paid the premium upon the whole, and he
would recover the whole. The fun returned to Eng-
land to of ill in this nefarious fcheme, but the father
having been arrelted, the younger Smythie thought
it moll difcreet to dilappear, and the Learned Conn.
fel underttood that he had quitted the kingdom. Fur
the purpofe of this caufe,it was only necelrary to thew
that Wm. Smythie wits not a partner, and he flonld
elo this by the belt of all evidence on fuch an occa-
lion the confellion of the father.
Mr. Pastes laid, he was only Collard far Mr.
flitichliffe, and therefore he did not think it at all
necelfary to give an anfwtr to the aliegetions of the
Solicitor General.
Mr. Perm!, for Jofeph Smythie, admitted, that
if unrupported alfertions and opprobrious language
were to decide this cattle, his Lem nest Friend on the
other fide mint infallibly fitccced : but if the law of
the land were to prevail, he could have no doubt of
the fuccefs of the I-ter:Adam. it was a fan which
he would eltablith beyond all contradietion, that Wil-
liam Smythie was a partner, and if he were ft). the
whole proceeding was nugatory, and the Plaintiff
mita be called. He fhottld Phew, out of the very
mouth of this Plaintiff, that the fun was a partnere-e-
The declaration in which he was fo denomina.ed, was
not batty or accidental ' • it was in a folemn proceed-
ing on otth before the Matter of the Court. The
Learned Counfel then compared the dates of Alm
prefent proceeding to thole in two other caufes in the
fame amount ; and laid, that, for the purpofes of the
latter he had made depofitions againft the three par.
ties, Hinchliffe and the two eimythies, as partners.—
There faels were afterwards fupported in evidence.
Tile SOLICITOR GENERAL faid, that io rrder to
&Akin his money, the Plaintiff had found it necef-
fary to commence various actions in different forms
againfi thcfc ilippery Defendants, which would fatif-

fallorny explain the dater which had beenattempt-
ed. It was incumbent on the Defendant Jofeph
Smythie, to eftablith his plea, that William Smythie
was a partner : he had neither produced the articles
of partnerfhip, nor a angle bill of parcels, nor a let-
ter with the common fignature to (hew Mk. The
Jury would therefore fee that he had failed this
feandalous experiment, and would give their verdid
for the Plaintiff.
After Tome obfervations from his Lordfhip, com-
parative of the teftimony in the caufe, a verdid was
found for the Plaintiff, fubjed to a reference as to the
quantum of damages.