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1797.

KEATE

TEMPLE.

The learned Judge in his directions to the jury faid, that if they were satisfied on the evidence, that the goods in question were advancedon the credit of the Defendant as immediately responsible, the Plaintiff was entitled to a verdict; but if they believed, that at the time when the goods were furnished, the plaintiff relied on being able, through the aslistance of the Defendant, to get his money from the crew, they ought to find for the Defendant.

Verdict for the Plaintiff 5761. 75. 8d.

A rule nisi for a new trial having been obtained on a former day by Shepherd Serjt. on the ground of the Defendant's undertaking being within the statute of frauds, (a)

Le Blancand Marshall Serjts, now shewed cause, and contended that the only question in the case had been left to the jury, and decided by them, viz. Whether the failors were liable in the first inftance, and the Defendant only came in aid of their liability: or whether the Defendant was immediately responsible? They faid that if the Boyne had been burnt before the delivery of the goods, the Plaintiff would have had no communication with the crew, and of course no ground of action against them; if therefore they were not liable on the original contract, the subsequent delivery would not shift the credit upon them.

Shepherd Serjt. in support of the rule, was stopped by the Court.

EYRE, CH.J. There is one confideration, independent of every thing else, which weighs fo strongly with me, that I should with this evidence to be once more submitted to a jury. The fum recovered is 5761. 7s. 8d, and this against a lieutenant in the navy: a fum fo large that it goes a great way towards satisfying my mind that it never could have been in the contemplation of the Defendant to make himself liable, or of the sopseller to furnish th, goods on his credit, to fo large an amount. I can hardly think that had the Boyne not been burnt, and the Plaintiff been asked whether he would have the lieutenant or the crew for his

paymafter, but that he would have given the preference to the latter. The circumstances of this case create some prejudice against the Defendant, but which I think capable of explanation. There is some appearance of harshness in making the men purchase these cloaths against their inclination. But it was in evidence, that though they were pretty well cloathed, yet their cloaths were adapted to a warm climate rather than to the service in which they

() 29 Car. 2. 6.3.1.4

were

1797

KRATE

TEMPLL.

were to be engaged. It was therefore the bounden duty of the
officer to take some course to oblige the crew to purchase proper
necessaries. We all know that a sailor is so fingular a creature,
so careless of himself, that he cannot, though his life depend upon
it, be prevailed upon, without force, even to bring up his ham-
mock upon deck to be aired. We know that he will risk any
danger in order to employ his money in a way that he likes,
rather than lay it out in that provident method which his situa-
tion may require. The whole of the imputation then on the
Defendant and Captain Greyamounts to this, that when the men
were to be cloathed, they wished them to be somewhat well
dressed. I do not know but that this circumstance may have had
some influence with the jury. But I do not feel the force of
it when opposed to the weight of the evidence on the other
fide, so as to make the officer liable for fo large a fum. From
the nature of the case it is apparent that the men were to pay
in the first instance: the Defendant's words were “I will fee
you paid at the pay-table; are you satisfied?" and the answer then
was, “ Perfectly fo.” The meaning of which was, that how-
ever unwilling the men might be to pay themselves, the officer
would take care that they should pay. The question is, Whether
the flopman did not in fact rely on the power of the officer
over the fund out of which the men's wages were to be paid, and
did not prefer giving credit to that fund, rather than to the lieu-
tenant, who, if we are to judge of him by others in the same
situation, was not likely to be able to raise fo large a fum?
Considering the whole bearing of the evidence, and that the
learned Judge who tried the cause has not expressed himself
satisfied with the verdict, I think this a proper case to be sent
to a new trial.

HEATH J. I am of the same opinion.
ROOKE J. I am of the fame opinion.

Rule absolute on payment of cofts.

1797.

MACDONALD V. PASLEY.

Nov. 27th.

THE

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*HE Plaintiff had been a failor on board the Romney, belong- C. by virtue of

ing to Commodore Johnfon's fquadron in 1781; the De- to receive all fendant was the prize agent of that thip.

money due to

him on a parti. In 1789 the Plaintiff made the following note

cular account Liverpool, Noo. 23. 1789. obtains three

out of four in“ Please to pay to Mr. Abraham Joseph, or order, my share italments due “ of prize-money for the Romney, for prizes captured by the fleet from A. to B. “ under Commodore Johnson, for which this shall be your these payments

on that account ; discharge.”

are afterwarıls “ From your humble servant, B. who brings

questioned by “. To the agents for the

his

his action against

A. for the whole Romney, London.

" JOHN + MACDONALD, fum, and at the mark

same time C. de

mands the 4th “ Witness, W. L. Moyley."

instalment; an All the prize-money due to the Plaintiff on account of the application to

the Court by A. captures made in 1781, (which was payable by four inftalments, to stay proceedviz. 31. 4s.; 48.; 21. 155. 6d.; and 31. 25. 6d.) had been paid to ings in the action

against him by B. one Grant as indorfee of the above note; except the first instal- on his paying ment of 31. 45. The prosent action was brought by Macdonald the 4th intalagainst the Defendant, for the whole sum, and Grant at the same person as they time claimed the 31. 45. still unpaid, as due to him.

Thould appoint, A rule having been obtained to thew cause why, on payment of 3l. 45. to such persons as the Court should appoint, all further nothing but a

power of attorproceedings on the action should not be stayed,

ney or will, comAdair, Serjt. Thewed cause, and contended that the payments plying with the to Grant could not discharge the Defendant, since the note on 266co. 3.6.63. which they were made did not comply with the directions of and 32 Geo. 3. 26 Geo. 3. c. 63. (a), and 32 Geo. 3. c. 34. which were palled to rant the pay

protect

ment to third

persons of money due from the public to failors and marines.

was retuied.

Semb. That

(1) By 26 Gen. 3. 6.63.5.1. “No letter and also the number at which the maker of attorney or will made by any petty officer stands upon the ship's book; if made hy or leaman in the service of His Majesty, 6c any such officer or seaman discharged from to empower any person to receive wages, the service of His Majesty, and within the pay or allowances of money of any kind due bills of mortality, ic thall be attested by an for such service, shall be good, unless made officer appointed hy the treaturer of the revocable ; if made by any such officer or navy; if at any of the ports where seamen's seamen then in the service of His Majesty, wages are paid, by the treasurer of the navy's Co. such letter of attorney or will must be clerk; if at any other place by the minister," higned before and attefted by the captain, &c. By f.2. “ every such letter of attorney s, and shall specify the name of the ship or will shall contain the name of the ship

VOL.1,

M

1797 proiect failors and marines from impofition. He infifted that

if it was necessary to subject a letter of attorney to the restrictions NACDONALD of the above act, a fortiori it was fo with respect to an order PASLIY. like the present, which was a less folemn initrument.

Le Blanc Serjt. in fupport of the rule faid, that the Defendant was ready to pay into court the 31. 45. for the benefit of those to whom it belonged: that in his present fituation he muft defend this action, with a certainty of paying costs to the Plaintiff, if he failed, or to Grani if he succeeded; and that as the acts alluded to only related to letters of attorney, they were out of the question in the present cafe.

EYRE, Ch. J. We ought not to decide against the Plaintiff on this summary application. If the sum of 31. 4s. had been the extent of the Plaintiff's demand, and another person befides the Plaintiff had claimed it of the Defendant, he would then have been in the situation described: and having different claims made upon him for the same thing, it would be reasonable that he should be relieved. But that is not the state of the present case. Here the Plaintiff says, that all the money which has been paid to Grant has been paid by the Defendant in his own wrong. There is a great deal of colour for the argument which has been used respecting the nature of the authority under which these payments have been made. If the legillature thought fit to put a power of attorney under particular regulations, there is great reason to suppose that it was meant that the agent thould not be difcharged by any thing less than a power of attorney. The Defendant is not in that situation in which the Court ever does or can interfere. If he can fhew that the payments have been made on good grounds he may then bring the 31. 4s. into court. Per Curiam,

Rule discharged. (a)

to which the person granting the same last order made by any petty officer, seaman, belonged, the residence, profeflion, or bufi- marine, &c. discharged from the service ness of the perlon in whole taveur it is made, of His Majesty shall be good and valid, for and the diy of the month and place where receiving wages, prize-money, or other alit was executed.” By 32 Geo. 2. c. 34.5.1. lowances of money due for such service, thcle provisions are extended to marines; unless attested by a clerk of the treasurer of and by f. 2. “ No letter of attorney or the navy, &C.

(a) Vid. Turtle v. Hartwell, 6 T, R. 426.

is not disabled

1797. SPARENBURGH v. BANNATYNE.

Nov. 27th.

2 Baf. & Pall. ASSUMPSIT for wages due to the Plaintiff as a seaman.

236. Pleas. ift, Non affumpfit.

I Taun.28. 2d. That the plaintiff is an alien, born in foreign parts, to wit, foreign flate in

A native of a in Holland, in parts beyond the feas, out of the allegiance of the amity wih this King of Great Britain, and within the allegiance of a foreign an act of hoftility power, and that before the suing out of the original writ of the on board an Plaintiff, and before the said day and year in the faid declaration and brought to mentioned, to wit, on, &c. a public and open war was com- England as a menced, waged, and carried on, and from thence hitherto hath pritoner. at war, been, and still is waged and carried on, between our Lord the from fuing while now King and his subjects, and the persons exercising the powers on a contraét of government in Holland and the inhabitants and people of entered into as a Holland under such government, to wit, at, 8c. And that the prisoner at war. Plaintiff before the faid day and year in the faid declaration mentioned, and at the suing out of the said original writ of the faid Plaintiff, and also at the commencement of the said war, was and ever since has been and still is an enemy of our faid lord the King, adhering to the persons fo exercising the powers of gurernment in Holland, and so being enemies of our faid lord the king as aforesaid, to wit, at, &c. And this the Defendant is ready to veriíy: wherefore, &c.

3d Plea. The same as the second; only omitting “ That the Plaintiff is an alien, born in foreign parts, to wit, in Holland, in parts beyond the seas, out of the allegiance of the King of Great Britain, and within the allegiance of a foreign power.”

Replication. To the first Plea, joinder in issue.

To the 2d. Protesting that the said Plea, and the matters therein contained, in manner and form as the fame are above pleaded and set forth, are not sufficient in law to bar the Plaintiff from having and maintaining his aforesaid action against the Defendant; neverthless, for replication in this behalf the Plaintiff faith, That he, before the making the said several promises and undertakings of the Defendant, in the said declaration mentioned, to wit, on, &c. was a prisoner of war, in custody of the forces of our Lord the King, in parts beyond the seas, to wit, at the island of Saint Helena, to wit, at, 8c. and being such prisoner as aforesaid, he the Plaintiff' then and there was, by and with the consent and permission of the commanding officer of M 2

the

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