1804. WILLIS against British subjects, some of which were allowed, and such parts of the cargo were acquitted, and restitution awarded; and the remainder of the cargo was adjudged good and The Commis lawful prize; and that the same should be forthwith sold by sioner of AP the agents of the captors, and the sale-money be distributed amongst the captors, &c. peals in Prize Causes. [ 23 ] From which sentence of condemnation the claimant appealed, which appeal was allowed on the usual terms. And thereupon it was further ordered by the Court, that a warrant of appraisement should issue, to value and appraise the several goods condemned; and upon the return of the said appraisement, that the agent for the captors should enter into good and sufficient security to account for, and pay over the net proceeds thereof, and also the amount of the specie condemned as aforesaid, as that Court should thereafter direct in case the sentence appealed from should be reversed. That the captors appointed B. Waterhouse of the island of Jamaica, merchant, to be their agent for and relating to the said prize and that he had duly, and within the limited time, exhibited and registered in the said Vice-Admiralty Court his letters of attorney, appointing him agent for the purposes aforesaid, according to the form of the statute. That at the return of the said appraisement, such security as aforesaid was duly entered into by two good and sufficient sureties on behalf of the captors, to answer the said appeal. That the goods condemned were, on the 20th of September, 1798, sold by public auction, pursuant to the statute, and netted, after payment of all expences, 4552l. Is. 7d. That an appeal was afterwards made to the commissioners, &c. who on the 29th of June 1801, reversed the decree of condemnation, and retained the claim for the general cargo, and decreed the same to be restored, or the value thereof paid to the claimant for the use of the owners: and assigned the said captors to bring in the account sales of the same on oath, and the proceeds thereof within a month; which account sales and proceeds were afterwards duly brought in accordingly; and condemned the captors in interest from the time of the sale of the said general cargo, and in the costs of the then hearing. That on the 4th of August 1802, the commissioners of appeals, at the petition of the claimant, decreed a monition against J. Willis and B. Waterhouse, as the the captors' agents, to appear before the commissioners, and shew cause why they should not pay interest upon the said proceeds. And on the 14th of July 1803, J. Willis being monished, appeared in the said court of appeals, holden before the Right Hon. the Earl of Roselyn, Sir William Grant, Kt., Sir William Wynne, Kt., Sir William Scott, Kt., and others, and shewed cause, as required; and although the said J. Willis was not any party to the said suit, appeal, and proceedings, or any of them, or in any way concerned or interested in the adjudication of the said prize, nor conpected therewith, otherwise than as being the general partner in trade with the said B. Waterhouse, the agent of the captors as aforesaid; and although the said monition was founded on no special or other suggestion on the part of the claimant, than that J. Willis and B. Waterhouse were the agents for the captors; and although J. Willis was not by law, nor ought to be subject to the payment of interest on such proceeds in consequence of that character; and although J. Willis and B. Waterhouse, or either of them, never were in any manner called upon prior to the determi nation of the said appeal, by the said court of appeal as aforesaid, to pay over the said proceeds, or any part thereof; and the same or any part thereof, never were or was improperly withheld from the jurisdiction of that court, or of the said Court of Vice-Admiralty, or from the party 'entitled to the possession thereof; and although the said general cargo, having been so condemned at Jamaica, became vested in the captors, upon bail being given to answer the said appeal as aforesaid, and was accordingly sold by B. Waterhouse, the acting agent of the captors, who having collected the proceeds of such sale, after payment of the expences, continued to hold the same as an agent or banker usually holds monies committed to his care or custody, and liable to be called for at any moment (that is to say) involved and mixed with other monies then also entrusted to him, and beld in deposit or otherwise; no judicial or other order having been made or given by any court, or by the captors, for vesting or laying out the proceeds at interest, or for otherwise disposing of the same with a view to make a profit thereof; and whereas no special application, investment, or disposal of the same was ever made for the use of benefit of the captors, or any of them, or of J. Willis and B. Waterhouse, or either of them; and no specific profit or advantage which could be set forth or ascertained had at any time been derived therefrom; and although as soon as the decree of restitution was made known to B. Waterhouse, he immediately caused the said proceeds to be paid to his Majesty's proctor, who brought the same into the registry of the court of appeals on the part of the captors, and J. Willis never had any power, custody, control, or management over the proceeds, or any part thereof, but the same remained with B. Waterhouse in Jamaica in manner aforesaid; and although the Lords Commissioners had no jurisdiction or authority whatsoever by the laws of this realm to condemn J. Willis to pay interest on the said proceeds, or any proceeds of the said general cargo, nor to enforce him to pay the same; and although J. Willis insisted upon all the premises before the Commissioners of Appeals, and offered to verify the same, yet they refused to admit the same, and decreed interest to be paid by J. Willis upon the proceeds of the said general cargo from the time of the sale thereof. The rule was obtained in the last term, on the ground that the act of the 33 Geo. 3, c. 66. (s. 23, 24, 28, 32.) which regulated matters of prize and prize agents, gave no authority to the prize courts in this case to decree interest to be paid by prize agents; and that no such authority was given by any other statute or law. Gibbs and Steven shewed cause against the rule. This being after the order of the Court of Appeals made, the only ground for a prohibition must be the want of jurisdiction in the Commissioners to make it. But, first, supposing that that Court had no jurisdiction over prize agents whose powers of attorney were not registered under the 51st section of the stat. 33 Geo. 3, c. 66., still it was a question of fact, Whether Mr. Willis were or were not a registered agent? which it was competent for the Court below to decide; and after sentence it must be presumed, if necessary, that the affirmative was proved; and, that conclusion, if unfounded, can only be questioned in a court of appeal. All such agents are, by the 59th section, required to account in the Court of Admiralty before the distribution of the prize money, and that Court 1801. WILLIS against The Commis sioners of Ap peals in Prize Court is to confirm or disallow the accounts upon objections not party to the proceedings, or interested in the adjudi "cation of the prize, nor connected therewith otherwise "than as being the general partner in trade with Water"house;" which shews that the question made before the Court of Appeals was as to the fact of Willis's agency. This was the very point decided by the Lord Chancellor in the case of the Danish ship Noysomhed (a). There a cargo condemned as prize by the Vice-Admiralty Court at Tortola was sent to Chorley at Liverpool, and sold by him for the benefit of the captors. Afterwards the Court of Appeal reversed the sentence, and decreed restoration, and that the captors should bring in an account of the proceeds within a month; under which a monition issued against Chorley; who moved for a prohibition on the ground that the property was consigned to him, not as prize agent, but as a general merchant, and that he had since accounted for the proceeds to the consignors. But the Lord Chancellor thought that a question proper for the Court of Admiralty to decide, as incidental to the principal question of prize; and that therefore he was not authorized to grant a prohibition. They also observed that the only affidavit made in support of the suggestion was to verify the proceedings in the prize court, and therefore it was irregular to introduce any extraneous fact into the suggestion, such as that Willis was not a co-agent with Waterhouse, if that were now to be insisted on. But, 2dly, The Court of Appeals has a general jurisdiction in rem in matters of prize, independent [ 27 ] 1801. of the stat. 33 Geo. 3; and may follow the prize or its proceeds into whatever hands they may get, and compel the WILLIS cgainst holder to account for those proceeds: and it is to be preThe Commissumed after decree, that Willis was proved before the Court sioners of Ap. peals in Prize of Appeals to have made interest of the prize money in his Causes. hands, in whatever character it came to him; and then the [ 28 ] Court, which has jurisdiction over the principal, has jurisdiction also over all its incidents, one of which is interest; and such interest, when proved to be made, is part of the proceeds of the prize, and may therefore be directed to be paid over. In Smart v. Wolfe (a), Buller, J. said, that every case which he knew on the subject was a clear authority to shew that questions of prize and their consequences. were solely and exclusively of the Admiralty jurisdiction. And that after the cases of Lindo v. Rodney (b), Le Caur v. Eden (c), and Livingston v. M'Kenzie (d), it would only be a waste of time to enter into reasons to shew that this Court has no jurisdiction over those subjects. [Lord Ellenborough, C. J. There is no doubt but that a prohibition will go to a Prize Court, if it clearly exceed its jurisdiction. If we do not grant prohibitions in matters of prize, it is because of the objection arising out of the subject-matter, and not in respect of the Court. The question made by the plaintiff's counsel was upon the act of parliament, Whether the Court of Appeals bad jurisdiction to grant interest? or whether it be not restricted to the net proceeds in any decree for restitution against the captors or their agents, according to the provisions of the 32d section? That section meant nerely to provide a rule for estimating the value of the prize itself at the time of the sale, the net proceeds of which it directs shall be deemed and taken to be the full value of the prize. But that does not restrain the general authority of the Court, to which the statute was only auxiliary. [ 29 ] Erskine, Park, and Richardson, in support of the rule. This is the first instance of interest decreed to be paid upon prize money, except against the captors themselves, and that by way of punishment for misconduct. In Le Caux (a) 3 Term Rep. 344- (b) Dougl. 591, n. 1 v. Eden |