1805.

HARVEY against COOKE.

[237]

238]

of the plaintiff, first proceeded with the homeward-bound trade to St. Kitt's, and afterwards to England. The plaintiff even expressed his wishes that Capt. Milne had remained longer on his station, so far from directing or assisting in what he did. The mere circumstance of Capt. Milne having been subject to the command of the plaintiff, is not enough to entitle the latter to share in the prize; because the procla mation itself superadds other conditions; namely, That he shall be either on board at the time, or directing or assisting: and I cannot consider the plaintiff as entitled to share, when, according to my understanding of those words, he did not either direct or assist in the capture.

LE BLANC, J. I should not have been sorry, on principles of public policy, if I could have found that the plaintiff was entitled to the flag-officer's share in this case, because it is not to be approved that an officer, however good his motives may have been, should derive, any advantage from his disobedience of orders; but no authority has been cited to shew that he may not, in such a case; and in the absence of any decision on the point, we can only look to the words of the proclamation; which shew that no flag-officer shall share unless he be actually on board, or directing or assisting in the capture. It is contended, that Capt. Milne was act ing at the time under the order of the plaintiff, because he afterwards ratified what the other did. But nothing of that kind appears; for Capt. Milne was under orders to remain at Demerara, which order was never revoked but from motives highly landable, he proceeded to convoy the trade to St. Kitt's, and from thence to England. Conscious, however, that he was acting all the time against orders, and on his own responsibility, he wrote to the plaintiff to excuse him to the Admiralty; and the plaintiff's own letter to that Board shews that he considered it in the same light; for he does not intimate that Capt. Milne had acted by his or ders, or even with his approbation; on the contrary, he expressed his wishes that he had waited longer for the ship which had been designed to act as convoy. And again, Capt. Milne, in his letter to the Admiralty after his return home, excuses himself for what he had done by the necessi ty of the case. Therefore, unless there were some authority for saying that an officer, who has in fact acted in direct contradiction

contradiction to orders, can be said to have acted under orders so as to entitle his superior officer to be considered as having assisted or directed him in the capture, I cannot say that the plaintiff has entitled himself to share within the terms of the proclamation,---though I should consider every capture made by a ship of a squadron acting under the command, and in obedience to the superior officer of such squadron, as a capture made under the direction or assistance of such superior officer.

Postea to the defendant.

1805.

HARVEY

against COOKE.

A

Ex parte BROCKE.

Saturday,
Feb. 9th

in the Greenland

An apprentice Fishery is no otherwise exbeing impressed general act of 13 Geo. 2, c. 17, all persons from being impressed

empted from

than under the

which exempts

before the age

of 18, and every person who not

having before used the sea,

shall bind him

Writ of habeas corpus having issued to bring up the defendant, an impressed seaman, for the purpose of his discharge, on the ground of exemption, as an apprentice in the Greenland Fishery, it was moved on a former day to quash the writ quia improvide emanuit when the facts appeared to be that Brocke, in March, 1801, being then above the age of 14 years, was apprenticed to one Morsom for five years in the Greenland Fishery, with whom he continued till he was impressed in October last, being then above the age of 18 years, and having served more than three years of his time. The statute 26 Geo. 3, c. 41, s. 2, requires that every ship in the Greenland *Fishery "shall have on board self apprentice apprentices indentured for three years at least, who shall not to serve at sea for the first 3 exceed 18, nor be under 14 years of age at the time they years of such shall be so indentured, in the proportion of one apprentice apprenticeship. at the least for every 35 tons burthen :" which apprentices * [ 239 ] shall be reckoned in the number of men required to be on board. Sec. 17 exempts certain persons employed in the fishery from being impressed; but does not mention upprentices. Then the stat. 29 Gen. 3, c. 53, s. 5, reciting the former and other acts relating to the same fishery, and that it is expedient to oblige the masters of ships to whom such apprentices shall be bound to keep them in their service for the time they shall be indentured, enacts, "That if any master to whom any apprentice shall be indentured, pursuant

1805.

Ex parte
BROCKE.

[210]

to the said acts, shall permit him to quit, leave, or depart his service on any pretence whatever (with an exception not material to state) before the expiration of the term for which he shall be bound, every such master shall forfeit 501." &c. The stat. 42 Geo. 3, c. 22, continues the several acts, and protects certain descriptions of persons (not mentioning ap prentices) from being impressed according to certain pro portions of burthen.

Jervis (and Garrow was with him) in applying for the rule to quash the writ of habeas corpus, observed, That it was not the object of the above-mentioned acts to protect apprentices in the Greenland trade from being impressed; but that their protection depended altogether upon the gene ral act of the 13 Geo. 2, c. 17; which first exempts from being impressed "every person not having attained the full age of 18 years;" and then enacts, s. 2, that "every per son who not having before used the "sea, shall bind himself apprentice to serve at sea, shall be exempted from being impressed for three years from the binding." Now here the party had been bound for more than three years, and was above 18 years of age when impressed and that the policy of the several statutes was to make a quick succession of apprentices bred to the sea.

Erskine and Holroyd shewed cause, and argued for the continuance of the exemption from the requisition of the stat. 26 Geo. 3, c. 41, That masters of vessels in this trade should have a certain number of apprentices in proportion to their tonage, to be bound for not less than three years, which therefore gave them a latitude to bind apprentices for a longer time; followed up as it was by the stat. 29 Geo. 3, c. 53, s. 5, obliging them to keep such apprentices in their service for the term for which they shall be bound, under a penalty of 50l.; and observed, That the legislature could not be so inconsistent as to make these provisions, if they were liable to be defeated, and the masters subjected to the penalties, by means of their apprentices (of which the mas ter here had only his proper number, including Brocke) being impressed against their consent. They also referred to the stat. 2 Geo. 3, c. 15, s. 22, as exempting apprentices bound for five years in the fisheries from being impressed ;

but

but the Court said that was confined to the fisheries on the coast of Great Britain.

1805.

Ex parte BROCKE.

Lord ELLENBOROUGH, C. J. No person in tthe Greenland Fishery is required to take apprentices for more than three years; and if for their own convenience they chuse to have them bound for a longer period, which they are not restrained from doing, it is at their own risk. The special provisions [241] against impressing particular descriptions of seamen in the Greenland Fishery, without naming apprentices, shews that the legislature meant to leave their exemption upon the general law of the 13 Geo. 2, c. 17.

Per Curiam.

Rule absolute for quashing the writ.

SCURFIELD against GowLAND.

a

Saturday,
Feb. 9th.

annuity applied

and to vacate a judgment which

had been irregu→

larly entered up on a warrant of

entering up

IN assumpsit for money had and received, tried before Where the Lord Ellenborough, C. J. at the Sittings after last term, grantor of an it appeared that the defendant had granted to the plaintiff a to have it set certain annuity secured by a deed, a bond, and warrant of attorney to enter up judgment in C. B.; but in the memorial of the annuity, the latter instrument was stated to be warrant of attorney to enter up judgment in B. R.: and atorney, which judgment having been afterwards entered up by mistake in was given for this court, the defendant had applied to set aside the annuity judgment on a upon this error in the memorial, and to have the secu- bond in another rities delivered up to be cancelled: and this court did accordingly set aside the judgment, and direct that the warrant of attorney should be delivered up to be cancelled (a), but made no order as to the deed or bond, which remained uncancelled; nor was there proof of any offer having been made by the plaintiff to the defendant to deliver up or cancel them. This action was brought to recover back the consideration money, the consideration for the annuity having failed. But it was objected at the trial, that the action of as

court to secure

the annuity, and

which warrant of attorney was improperly de

memorial; and this Court accordingly set aside the judg ment; held that

scribed in the

the grantee

might recover deration-money

back the cousi

in assumpsit, and' was not put to his action on a bond which was also given for securing the annuity, and which bond was not ordered to be cancelled, though voidable in pleading by virtue of the aupuity act.

(a) It was asked by Le Blanc, J. how the warrant of attorney which was to enter up judgment in C. B. came to be set aside, that not being consequential upon the vacating of the judgment in this Court, which has no foundation for it: but no account could be given of it.

Ns

sumpsit

1805.

SCURFIELD against GOWLAND.

[243]

sumpsit would not lie, the plaintiff still having his remedy upon the bond and deed; and on this ground the plaintiff was nonsuited.

It was moved on a former day to set aside the nonsuit, on the ground that the defendant having elected to set aside the annuity, and applied to the Court for that purpose, and the Court having pronounced judgment upon the illegality of it, and vacated the warrant of attorney and judgment given to secure it, it was not competent to the defendant now to set up this objection upon the ground that the annuity was still secured by subsisting instruments, the illegality of which were declared; and that it was nugatory to oblige the plaintiff to bring his action in the first instance on the bond or deed, to put the defendant to plead the special matter, and shew that they were void under the annuity act by the judg ment of the Court, in order to enable the plaintiff afterwards to bring this action. And it was said, that in a similar action to the present, brought under the like circumstances, before Lord Kenyon, his lordship had ruled in favour of the plaintiff, who thereupon obtained a verdict.

Park and Dampier now shewed cause, and said, That this was an attempt to make the 1st and 4th clauses of the annuity act (a) the same, which were very distinct. The first enacts, "That a memorial of every deed, bond, instrument, or other assurance, whereby any annuity shall be granted, shall be enrolled in Chancery, otherwise every such deed, bond, instrument, or other assurance, shall be null and void." Upon this it has been a question, Whether any other than the particular deed, &c. omitted to be memorialized is avoided? But at any rate, such deed, &c. must be avoided by pleading. For the 4th clause, which alone enables the Court, on motion, to order the deed, bond, &c. to be can. celled, only extends to cases where it shall appear to them that any part of the consideration has been returned; or if given in notes, that such notes were not paid when due, or were cancelled without being first paid; or if any part of the consideration were paid in goods, or were retained by the grantee: neither of which applies to the present case. In Shove v. Webb (a), which was the first case where the con

(a) 17 Geo. 3, C. 26.

(b) 1 Term Rep. 732.

sideration