Star.
London, England, 1802-07-03 00:00:00

COURT OF COMMON PLEAS, JULY s.

The prize cafe between Lord St. Vincent and
Lord Nelfon was argued on the fpeeial verdia of a
Jury, fubjea to the opinion of the Court. The
property litigated is the Admiral's share of the
vefftls taken by the Alcmene, Capt. Digby, now
in the hands of the prize agents, to abide the deci-
lion of the law. On the part of the plaintiff, Lord
St. Vincent, it was contended, that having left his
Ration animo revertea4 and no other perfon being
commander in his place, and Capt. Digby having
gone in fearch of the captured veffels, by his ex.
profs orders, he was entitled, though at the time
of the capture he was at Bath, by permiffion of the
Admiralty.
On the other fide it was contended, that Lord
St. Vincent, having left an Admiral on the Ration,
had abdicated his command. The King's procla-
mation, relative to prizemoney, iffued at the com-
mencement of the war, was cited on both fides.
Tue Court referved its opinion on the arguments.

COURT OF KING'S BENCH, JULY s.
WATERNOVSE V. 111N0.

This was a fpecial cafe referved for the opinion
of the Court. The plaintiff was fecond Captain
of the (hip Reliance, appointed on the fervice for
Botany Bay. The firß Officer of the (hip was
Capt. Hunter. The plaintiff was fecond in corn.
mand, and he was appointed to this office of Se-
cond Captain, or Second in Command, by the
Lords of the Admiralty. While this (hip was at
Plymouth, the Dutch fleet there was detained by
order of Government, and was afterwards con-
demned as prize, upon the breaking out of WU-
Lacs between this country and Holland : and this
Ihip, being part of Admiral King's fleet, which
was at Plymouth when the Dutch fleet was de-
tained, the (hip's Officers, &c. became entitled to
their (hare of prize-money in the proportion Rated
by his Majeßy's Proclamation: but it was con-
tended, that this plaintiff, Capt. \Cita houfe, being
Second in Command to another Officer, who was
the Captain, he could not be held to he a Captain
of that (hip, inafmuch as that the Lords of the
Admiralty had no power to make this appoint-
ment of Second Captain, without fubmitung it
ezprefsly, to the approbation of his Majeity in
Council, and that for want of that fubmiflion and
approbation, this appointment was void. Captain
Waterhoufe brought his anion for the recovery of
I•

to the opinion of the Court upon this cafe, upon
the conitruaion of all the orders in Council, Pro-
clammlons, &c. made in this behalf from the year
1730, down to that of t 786, when the Botany Bay
Settlement had tranfports fent to it, and on ac-
count of which fervice, this appointment, by the
Lords of the Admiralty, took place.
The cAfe was this day argned very ably, by Mr.
Bee-roN, for the plaintiff, and Mr. GAZELY, for
the defendant. The former of thefe Learned
Gentlemen contended, that the plaintiff was ap-
pointed by the Lords of the Admiralty as Cap-
tain, who were duly empowered by the King for
that purpofe. That he was Captain, therefore,
in rank, in Ration, in duty, liable to all the pro-
vifions of a Court-Martial, punithed under the
authority of Martial-Law, fok mifeonduCt, in the
eh:trader of Captain ; that he was fo muttered
upon the books • that he was, and muff be taken
to be Captain el
faao, if not de jure; that he was
both ; but it would be enough for him to be either,
in order to become entitled- to his fltare of prize-
money in this cafe, under his Majefty's Proclama-
tion, and that therefore he was entitled to the
judgment of the Court.
It was contended by the other of thefe Learned
Gentlemen, that although this plaintiff was on
board in the rank of a Second Captain, appointed
by the Lords Commiffioners of the Admiralty,
yet, that, as this appointment was never fubmit-
ted to his MAjeffy in Coned, nor had received the
Royal Approbation, it was null and void ; and
this was contended under the authority of Captain
Lumley's cafe, when the contett was between him
and Captain Sutton : that even by the plaintiff's own
confedion, in this cafe, it appeared, that whatever
rights he might have, as Commander, in the ab-
fence of Captain Hunter, he had no authority, as
Captain, while Captain Hunter was on board;
that then, he was a mere affiltant of Mr. Hunter.
That whatever his Ration was. he was not a Cap-
tain of the (hip in queftion. That, in (hors, on
the ground that the Lords of the Admiralty had
no power to make this increafe to the ellablifh-
ment of the Navy, without the authority of the
Crown—that even if he was to be confidered as
Captain, in tome fenfe of that title, he did not
come within the defcription of Captain, that was
entitled to a (hare as fuch of the prize money, in
this cafe, under the Royal Proclamation, &c.
Lord ELLIINBOROUGH having been Counfel in
the caufe, took no (bare in the judgment of the
Court.

Mr. Jußice Laweawca (aids that, upon this
oceafion, two queßions arofe :—The firft was,
whether or not the plaintiff's appointment was
fufficient to the office of Second Captain of this
Ihip, the Reliance ? The next quellion was, fup-
poting him to be fo regularly appointed, whether,
under the King's Proclamation, he was entitled
to a (hare of the prize•money in this cafe ?
Upon the firs of thefe quellions, as to the power
of the Lords of the Admiralty to make this ap-
pointment, the Learned Judge obferved, that the
Letters Patent, under the Great Seal, fpecifying
the powers of the Lords of the Admiralty, were
not before the Court : but he underßood their
power in general to be that of providing for the
Navy of this kingdom, for which purpae it was
neceffary to equip !hips, appoint Officers to com-
mand crews in adion, &c. fubjed to the general
diredion of the Crown : that their power was di-
redive, and that of the Crown diredory : that, in
confequence of this power, the Lords of the Ad-
miralty had appointed the plaintiff Second Cap-
tain, or Second in Command, of this (hip, as they
might do for that or any other (hi p in the Navy,
as might appear to them neceffary for the exigency
of the public fervice. The next quellion ( fuppofing
the firft to be decided in the plaintiff's favour)
Would be, whether he would be entitled, under
the Proclamation, to come in for his !hare of the
prize-money ?
It was argued, that the plaintiff, Captain Wa-
terhoufe, had no command, but in the abfence of
Captain Hunter; now, on looking at his Commit-
lion, it would appear that this argument was not
founded. It gave the plaintiff the rank of Second
Captain, or Second Commander, and then it went
on to Rate, " That in the abfence of the principal
Commander, the plaintiff was to at as the tole
Commander. That, in the pretence of the Fa
Commander, he was to be fubjea to his diredion,"
fo that he was not a mere affillant of the Com-
mander of the (hip, but in his abfence, he was to
become the abfolute Commander of it himfell: it
appeared by his Commiffion, that Captain Water-
houfe had powers without reference to thofe of
Captain Hunter, for the Commiffioners, in the
language of the Commiffion, Paid, " We appoint
you Second Commander of the Reliance, defire you
to go on board and take the fecond command of
her accordingly ;" and then, without laying any
thing of the pretence or the abfence of the Ftra
Commander, the Commiffion goes on to defcribe
the duty of the fecond Commander, as known to
thofe who thould be required to obey him. Be-
tides all this, Captain Waterhoufe had alto his
number of fervants to obey him in the Rile of a
Captain, together with the other diftindions and
advantages that were incident to fuch Ration, and
thefe he was to have, whether Captain Hunter
was on board or abfent. This cafe had been com-
pared to the cafe of Captain Lumley and Captain
Sutton, but that cafe was different from this, for
Captain Lumley ailed merely as Supernumerary;
he had no pay, and he was on board for his
victuals only : but here was pay and all the other
marks of a Captain attached to Mr. Waterhoufe,
fo that the two cafes were materially different.—
Then, taking the plaintiff to be rightly appointed,
and in a manner fufficient to determine that he
was Captain defatio, the next queftion was, whe-
ther he came in under the Proclamation for the
dißribution of prize money ? He was in the Ra-
tion of Captain, and as to his being a Second Cap-
tain of a finale (hip, he did not fee that the Lords
of the Admiralty should not have power to make
that appointment, if neceffary, for the navy, as
well as any other regulation.
Mr. Jußice La B‘ftec Paid, he thought the
plaintiff entitled to a !hare of prize in this cafe,

miffion granted to him by the Lords of the Adriii-
ralty, and that he mull always be entitled to all
the privileges attached to that Ration, unlefs it
could be (hewn that the Lords of the Admiralty
had exceeded their power in granting him that
committal. The extent of that power did not
appear before the Court, but the Court would not
inter that they had exceeded their power, but
would take it for granted, that they executed the
duties of that office properly, and the Learned
Judge faid, he took it that the office of the Lords
of the Admiralty wai the time as that of the Lord
High Admiral of England, which was that of
" providing for the exigencies of the Navy in
general, to put (hips into committon, to appoint
Commanders, to dire& their Ration, &c. in fuch
a manner as was bell for the fervice of their coun-
try ;" upon this occafion the Lords of the Ad-
miralty were of opinion,that a &It and fecond Cap-
tain were neceliary in this Chip, and the Court of
King's Bench could not difpute the propriety of
the judgment of the Lords of the Admiralty. This
was a different cafe from that of Captain Lumley,
as his brother Lawrence had Rated, and the ap-
pointment mull, upon the whole, be held to be
valid. The next queßion was, whether the plain-
tiff came under the rules laid down in his tala-
jeßy's proclamation Now he was a Captain oa
board at the time of the capture, as the exigency
of the fervice required, and therefore there was no
reafon why he ()multi not have all the benefit of
that fituation. Judgment for the plaintiff.

WEST V. WHITE.

Mr. Gums moved, that in this cafe, ferviee of a
rule on Mr. Roundtree mould be confidered notice
to Mr. Weft. The cafe was this:—Mr. Round.
tree is one of the gentlemen who advertife more/
accommodation: in the newfoapers. Through has
agency an annuity was fold to a perfon of the name
of Weft on terms very difadvantageous to the O.
ler, who now wanted to undo that tranfaCtion ; he
had made every poflible inquiry after this Mr. Welt
but without fuccefs; he had applied to Mr. Round.
tree, but his anfwer was, that there certainly was
fuch a man as Weft in exiftence, but that he was a
fingle man, who lived here and there and every
where, and that he could give no kind of direaion
by which Mr. Weft could be fervcd with the pro.
cefs of the Court. Mr. Glass then Rated, that his
client firmly believed there was no fuch perfon in
exiftence as this Weft, but that Roundtree himfelf
was the purchafer of this annuity. This motion,
and a conditional rule to flay proceedings on this
annuity, was granted, which Lord ELLEN sOuOVGat
obferved, was the fureft means of finding out the
real holder of this annuity.