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Park, in support of the rule, now insisted on the extensive danger and inconvenience to the trade of the country, if a person, who at the time was the acting commander of the vessel, and charged with the specific custody of the cargo on board, could be impressed at a moment's warning, against the faith of the protection, which was in force at the time. That at least such a protection was in force against any impress warrant of a prior date issued; which was the case of the warrant under which Herbert was impressed.
Garrow and Jervis, in opposing the rule, said that such protections were in general observed, excepting where the special exigency of the service required a more rigid application of the public force. That the granting of these protections being mere matter of favour, they might be withdrawn at pleasure.
The Court agreed in this, and said that whatever the indulgence of the board of admiralty might be on these occasions, neither that board nor this Court could give any protection to this class of persons from the impressservice beyond that which the legislature had extended to them in certain cases, of which this was not one. And therefore such a licence could have no effect against the exigency of the public service. They also agreed that it made no difference that the press-warrant in this case had been issued before the licence.
1812. Isaac Pratt's Case.
June 16th. TH FHIS was also an application for the discharge of an
The Court disimpressed seaman, late a mariner on board the charged a mariElizabeth fishing smack, of 57 tons burthen, belonging been impressed
ner who bad to Harwich; ' a protection had been given by the board out of a fishing
smack; he lav. of admiralty, upon the application of the master of the ing had an imvessel under the stat. 50 Geo. 3. c. 108. s. 2., which press protec:
to limits the protections from the impress service to one board of admimariner of every such vessel, besides the master and his ralty, under the
directions of apprentices. But when he was impressed on the 6th of the st. 50 G. 3. January last, there were more mariners on board.
c. 108., though
by the accident Besides which the man had not got his protection on of the vessel's board at the time he was impressed ; the reason of which it reached him,
he had it not now appeared to be that after it was granted by the to produce to board, it was sent down to Yarmouth, where the vessel officer at the then was, but she had sailed before it arrived there : time, as he
ought to have but the circumstances were mentioned to the impress- bad, which
warranted the ing officer at the time, and the protection was still in officer in imforce.
pressing him : and though the
master had Garrow and Jervis in opposing the rule, urged these afterwards re
ceived a greater defects; and referred to the terms of the protection, as number of requiring it to be produced by the person claiming board than under it.
in the act. But The Court, (without hearing Scarlett for the applicant,) thought him entitled to his discharge. Lord Ellenborough, C. J. said that however the impressing officer was warranted in taking the man at the time, he had not his protection with him; yet now, when the question was whether he was truly entitled to be protected at the time, and it turned out that he really had a protection under the act of parliament, though he was
not then able to exhibit it, by reason that the ship had sailed before it could reach him, the Court ought to give effect to it by setting him at liberty.
And such protection given by the board of admiralty, under the act for the individual benefit of the person named in it, could not be abrogated as to him by the subsequent act of the master in taking other persons on board.
Smith against Lewis (a). Bail having rendered tbeir A RULE was obtained by Espinasse for the plaintiff principal in
to shew cause why the proceedings on the recognitime, according to the practice
zance against the bail should not be stayed, and an exoneof the Court,
retur entered on the bail-piece, the defendant having are entitled to stay tbe pro- surrendered. The capias ad satisfaciendum was returnceedings in an action on their able on the first day of this term (29th of May), and the recognizance without costs,
defendant was rendered on the 30th, and notice of the though the plaintiff com
render given on the evening of the 1st of June. · On the menced his 29th of May the bail had been served with writs in the action before he was served action on their recognizance. The question now was with notice of the render,
whether the rule was to be made absolute except on payment of costs, in proceedings against bail till notice of the render was served.
Campbell relied upon Perigal v. Mellish (b), and Abbott v. Rawley (c), as in point against the bail; and contended that these cases were not over-ruled by Byrne v. Aguilar (d), in which the Court did not deny the plaintiff's right to costs under such circumstances, but only held that it was irregular to proceed against the bail after notice of the render.
(a) This note was communicated to me by Mr. Espinasse.
SMITH against Lewis.
The Court, however, said that the rule of Trin. 1 Anne, having directed that all proceedings against the bail should cease upon notice of the render, they were entitled to have the proceedings stayed unconditionally.
Rule absolute (a). (a) See 15 East, 254., Hughes v. Poidevin.
M’lver and Another against Humble, Hol
June 16th. LAND, and WILLIAMS. THIS THIS was an action for goods sold and delivered; to Where the which the defendant Humble pleaded non assumpsit, partner for the
party sued as a and the other two defendants severally pleaded their furnished for
value of goods bankruptcy and certificates after the cause of action arose;
of a ship,” was on which a noli prosequi was entered as to them, and the neither a part
ner in fact at cause proceeded to trial against Humble only. At the the time, (hav. trial before Le Blanc, J. at Lancaster, the plaintiffs proved his share some
ing parted with the delivery of the goods, on the 13th of January 1810, time before,)
nor held himon board the ship Susannah at Liverpool, in consequence self out as such, of a prior order given on the 2d by the clerk of a house withdrawn his trading there at that time under the firm of Samuel Hol- name from the
description of land and Co., which order was given in the general name the firm at the
counting-house of the owners of the ship Susannah, and the bill of parcels andsentcircular
letters to the was made out accordingly, “ Owners of Susannah, debtors cett
correspondents to M Iver and Co.;" and the plaintiff's clerk at the time of the house, debited“ Samuel Holland and Co. for the ship Susannah.” change ; be Then in order to shew that the defendant Humble was a charged merely
because having part-owner of the Susannah, the plaintiffs produced in
defectivelyconevidence the registers relating to that ship. 1. The cer- reyed his whole
share in the ship tificate of registry de novo at Liverpool, under date of before that
time, he had subsequently joined with the assignees of the bankrupt partners in the ship in making a good title to it to a purchaser from the assignees.
the 8th of June 1808, obtained upon the oaths of Samuel Holland and Thomas Strickland of Liverpool, merchant, stating that they, “together with Michael Humble, of Bawtry, in the county of York, merchant, who is not now within the distance of 20 miles from this port," were sole owners of the ship Susannah, &c. 2. An indorsement on the certificate of registry, dated the 14th of June 1808, stating that T. Strickland had that day sold and transferred all his right and interest in the ship Susannah to S. Holland and M. Humble, merchants, and signed S. Strickland. 3. Another indorsement on the said certificate, dated the 21st of November 1809, recording a transfer made of a moiety of the ship by Humble and Holland to T. S. Williams on the 7th of October 1809, while the ship was at sea : and this was signed “ M. Humble, by Sl. Holland, his attorney by power. S. Holland.” 4. Another indorsement on the certificate of registry, dated the 7th of March 1811, [this was after the bankruptcy of the defendants Holland and Williams, which took place in November 1810, when the commission issued against them, under which J. Gladstone, H. Jones, and J. Blair were chosen assignees ;] stating that “J. Gladstone, H. Jones, and J. Blair, assignees of the estate and effeets of S. Holland and T. S. Williams, bankrupts, and also the said S. Holland and T. S. Williams, and M. Humble, of Liverpool, merchants, have this day sold and transferred all our rights, shares, and interests of, in, and to the said ship Susannah, to Swinton Colthurst Holland of London, and W. Fairclough of Liverpool, merchants, as witness our hands, &c. ;” and this was signed by Gladstone, Jones, and Blair, the assignees, by Holland and Williams, the bankrupts, and by Mi. Humble, the defendant. It appeared further upon the
M'IVER against HUMBLE.