The learned Judge in his directions to the jury faid, that if they were fatisfied on the evidence, that the goods in queftion were advanced on the credit of the Defendant as immediately refponfible, 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 affiftance of the Defendant, to get his money from the crew, they ought to find for the Defendant. Verdict for the Plaintiff 576l. 75. 8d.

A rule nifi 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 ftatute of frauds, (a)

They

Le Blanc and Marshall Serjts, now fhewed caufe, and contended that the only queftion in the cafe 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 refponfible? 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 courfe no ground of action against them; if therefore they were not liable on the original contract, the subsequent delivery would not fhift the credit upon them.

Shepherd Serjt. in fupport of the rule, was ftopped by the Court.

EYRE, Ch. J. There is one confideration, independent of every thing else, which weighs fo ftrongly with me, that I should with this evidence to be once more fubmitted to a jury. The fum reccvered is 5761. 7s. 8d. and this against a lieutenant in the navy: a fum fo large that it goes a great way towards fatisfying my mind that it never could have been in the contemplation of the Defendant to make himself liable, or of the flopfeller to furnish the 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 circumftances of this cafe create fome prejudice against the Defendant, but which I think capable of explanation. There is fome 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

(a) 29 Gar. 2. 6. 3. S. 4.

1797.

KEATE

V.

TEMPLE.

were

1797.

KRATE

V.

TEMPLE.

were to be engaged. It was therefore the bounden duty of the
officer to take fome courfe to oblige the crew to purchase proper
neceffaries. We all know that a failor is fo fingular a creature,
fo 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 rifk 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 fitua-
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 wifhed them to be fomewhat well
dreffed. I do not know but that this circumftance may have had
fome 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, fo as to make the officer liable for fo large a fum. From
the nature of the cafe it is apparent that the men were to pay
in the firft inftance: the Defendant's words were "I will fee
you paid at the pay-table; are you fatisfied?" and the answer then
was, "Perfectly fo." The meaning of which was, that how-
ever unwilling the men might be to pay themfelves, the officer
would take care that they should pay. The queftion 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 fame
fituation, was not likely to be able to raise fo large a fum?
Confidering the whole bearing of the evidence, and that the
learned Judge who tried the caufe has not expreffed himself
fatisfied with the verdict, I think this a proper cafe to be fent
to a new trial.

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

Rule abfolute on payment of cofts.

MACDONALD V. PASLEY.

THE Plaintiff had been a failor on board the Romney, belonging to Commodore Johnfon's fquadron in 1781; the Defendant was the prize agent of that fhip.

In 1789 the Plaintiff made the following note –

"Liverpool, No. 23. 1789.

"Please to pay to Mr. Abraham Jofeph, or order, my fhare " of prize-money for the Romney, for prizes captured by the fleet "under Commodore Johnfon, for which this fhall be your discharge."

66

"To the agents for the "Romney, London.

“Witness, IV. L. Moyley."

"From your humble fervant,

his

"JOHN + MACDONALD,

mark.

All the prize-money due to the Plaintiff on account of the captures made in 1781, (which was payable by four inftalments, viz. 31. 48.; 48.; 2l. 15s. 6d.; and 3l. 2s. 6d.) had been paid to one Grant as indorfee of the above note; except the firft inftalment of 37. 45. The prefent action was brought by Macdonald against the Defendant, for the whole fum, and Grant at the fame time claimed the 37. 4s. ftill unpaid, as due to him.

against him by B.
on his paying
the 4th inftal-
perfon as they
hould appoint,
was refufed.
Semb. That

ment to fuch

A rule having been obtained to shew cause why, on payment of 31. 4s. to fuch perfons as the Court fhould appoint, all further nothing but a proceedings on the action should not be stayed,

power of attor-
ney or will, com-

plying with the
26 Geo. 3. c. 63.
and 32 Geo. 3.
c. 34. will war-

Adair, Serjt. fhewed caufe, and contended that the payments to Grant could not difcharge the Defendant, fince the note on which they were made did not comply with the directions of 26 Geo. 3. c. 63. (a), and 32 Geo. 3. c. 34. which were paffed to rant the pay

(4) By 26 Geo. 3. c. 63. f. 1. "No letter of attorney or will made by any petty officer or leaman in the fervice of His Majefty, &c. to empower any person to receive wages, pay or allowances of money of any kind due for fuch fervice, thall be good, unless made revocable; if made by any fuch officer or feamen then in the fervice of His Majefty,

fuch letter of attorney or will must be figned before and attefted by the captain, and fhall specify the name of the thip

protect

ment to third perfons of money due from the public to failors and marines.

and alfo the number at which the maker
ftands upon the fhip's book; if made by
any fuch officer or feaman discharged from
the fervice of His Majefty, and within the
bills of mortality, it shall be attefted by an
officer appointed by the treaturer of the
navy; if at any of the ports where seamen's
wages are paid, by the treasurer of the navy's
clerk; if at any other place by the minister,"
&c. By f. 2. " every fuch letter of attorney
or will hall contain the name of the ship

to

1797.

protect failors and marines from impofition. He infifted that if it was neceffary to fubject a letter of attorney to the restrictions MACDONALD of the above act, à fortiori it was fo with respect to an order like the prefent, which was a lefs folemn inftrument.

V.

PASLEY.

Le Blanc Serjt. in fupport of the rule faid, that the Defendant was ready to pay into court the 37. 4s. for the benefit of those to whom it belonged: that in his prefent fituation he muft defend this action, with a certainty of paying cofts to the Plaintiff, if he failed, or to Grant if he fucceeded; and that as the acts alluded to only related to letters of attorney, they were out of the queftion in the prefent cafe.

EYRE, Ch. J. We ought not to decide against the Plaintiff on this fummary application. If the fun of 3l. 45. had been the extent of the Plaintiff's demand, and another perfon befides the Plaintiff had claimed it of the Defendant, he would then have been in the fituation defcribed: and having different claims made upon him for the fame thing, it would be reasonable that he should be relieved. But that is not the ftate of the prefent cafe. Here the Plaintiff fays, 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 refpecting the nature of the authority under which these payments have been made. If the legiflature thought fit to put a power of attorney under particular regulations, there is great reafon to fuppofe that it was meant that the agent fhould not be dif charged by any thing lefs than a power of attorney. The Defendant is not in that fituation 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 37. 4s. into court.

Per Curiam,

to which the perfon granting the fame last
belonged, the refidence, profeflion, or bufi-
nefs of the perfon in whofe favour it is made,
and the day of the month and place where
it was executed." By 32 Geo. 2. c. 34. I.
thefe provifions are extended to marines;
and by f. 2. "No letter of attorney or

Rule discharged. (a)

order made by any petty officer, feaman, marine, c. difcharged from the fervice of His Majefty fhall be good and valid, for receiving wages, prize-money, or other allowances of money due for such service, unless attefted by a clerk of the treasurer of the navy, &c.

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

SPARENBURGH v. BANNATYNE.

due to the Plaintiff as a feaman.

ASSUMPSIT for wages
Pleas. ft, Non affumpfit.

2d. That the Plaintiff is an alien, born in foreign parts, to wit, in Holland, in parts beyond the feas, out of the allegiance of the King of Great Britain, and within the allegiance of a foreign power, and that before the fuing out of the original writ of the Plaintiff, and before the faid day and year in the faid declaration mentioned, to wit, on, &c. a public and open war was commenced, waged, and carried on, and from thence hitherto hath been, and still is waged and carried on, between our Lord the now King and his fubjects, and the perfons exercifing the powers of government in Holland and the inhabitants and people of Holland under fuch government, to wit, at, &c. And that the Plaintiff before the faid day and year in the faid declaration mentioned, and at the fuing out of the faid original writ of the faid Plaintiff, and alfo at the commencement of the faid war, was and ever fince has been and still is an enemy of our faid lord the King, adhering to the perfons fo exercifing the powers of government in Holland, and fo being enemies of our faid lord the King as aforefaid, to wit, at, &c. And this the Defendant is ready to verify: wherefore, &c.

3d Plea. The fame as the fecond; only omitting "That the Plaintiff is an alien, born in foreign parts, to wit, in Holland, in parts beyond the feas, 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 iífue.

To the 2d. Protesting that the faid Plea, and the matters therein contained, in manner and form as the fame are above pleaded and fet forth, are not fufficient in law to bar the Plaintiff from having and maintaining his aforefaid action against the Defendant; neverthlefs, for replication in this behalf the Plaintiff faith, That he, before the making the faid feveral promifes and undertakings of the Defendant, in the faid declaration mentioned, to wit, on, &c. was a prifoner of war, in cuftody of the forces of our Lord the King, in parts beyond the feas, to wit, at the island of Saint Helena, to wit, at, &c. and being fuch prifoner as aforesaid, he the Plaintiff then and there was, by and with the confent and permiffion of the commanding officer of