1812.

HERBERT'S
Case.

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 That the granting of these protections being mere matter of favour, they might be withdrawn at pleasure.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 ease had been issued before the licence.

Rule discharged.

T

ISAAC PRATT's Case.

his

1812.

Tuesday, June 16th.

The Court dis

ner who had

out of a fishing

smack; he hav. ing had an im

press protection granted to him by the

board of admiralty, under the

directions of

the st. 50 G. 3.

HIS was also an application for the discharge of an impressed seaman, late a mariner on board the charged a mariElizabeth fishing smack, of 57 tons burthen, belonging been impressed to Harwich; a protection had been given by the board of admiralty, upon the application of the master of the vessel under the stat. 50 Geo. 3. c. 108. s. 2., which limits the protections from the impress service to one mariner of every such vessel, besides the master and apprentices. But when he was impressed on the 6th of January last, there were more mariners on board. Besides which the man had not got his protection on board at the time he was impressed; the reason of which now appeared to be that after it was granted by the board, it was sent down to Yarmouth, where the vessel then was, but she had sailed before it arrived there: but the circumstances were mentioned to the impressing officer at the time, and the protection was still in force.

Garrow and Jervis in opposing the rule, urged these defects; and referred to the terms of the protection, as requiring it to be produced by the person claiming under it.

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, as 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

c. 108., though
by the accident
of the vessel's
sailing before
it reached him,
to produce to
the impress
officer at the

he had it not

time, as he ought to have had, which officer in impressing him : and though the master had

warranted the

afterwards received a greater number of

mariners on

board than

were described in the act.

1812.

PRATT'S
Case.

Bail having
rendered their
principal in
time, according
to the practice
of the Court,
are entitled to
stay the pro-
ceedings in an
action on their
recognizance
without costs,
though the
plaintiff com-
menced his
action before
he was served
with notice of
the render.

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).

Rule absolute.

A RULE was obtained by Espinasse for the plaintiff

to shew cause why the proceedings on the recognizance against the bail should not be stayed, and an exoneretur entered on the bail-piece, the defendant having surrendered. The capias ad satisfaciendum was returnable on the first day of this term (29th of May), and the defendant was rendered on the 30th, and notice of the render given on the evening of the 1st of June. On the 29th of May the bail had been served with writs in the action on their recognizance. The question now was 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.
(b) 5 Term Rep. 363.

(c) 3 Bos. & Pul. 13.

(d) 3 East, 306.

The

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.

1812.

SMITH

against LEWIS.

M'IVER and Another against HUMBLE, HOL-
LAND, and WILLIAMS.

THIS
HIS was an action for goods sold and delivered; to
which the defendant Humble pleaded non assumpsit,
and the other two defendants severally pleaded their
bankruptcy and certificates after the cause of action arose;
on which a noli prosequi was entered as to them, and the

Tuesday, June 16th.

Where the party sued as a

partner for the
value of goods

furnished for
"the owners
of a ship," was
neither a part-

ner in fact at

cause proceeded to trial against Humble only. At the the parted with

time before,)

nor held him

trial before Le Blanc, J. at Lancaster, the plaintiffs proved in parted with the delivery of the goods, on the 13th of January 1810, on board the ship Susannah at Liverpool, in consequence of a prior order given on the 2d by the clerk of a house trading there at that time under the firm of Samuel Hol

self out as such, having before withdrawn his name from the description of the firm at the counting-house

letters to the correspondents of the house, notifying the change; he

land and Co., which order was given in the general name of the owners of the ship Susannah, and the bill of parcels andsentcircular was made out accordingly, " Owners of Susannah, debtors to M'Iver and Co. ;" and the plaintiff's clerk at the time debited" Samuel Holland and Co. for the ship Susannah." Then in order to shew that the defendant Humble was part-owner of the Susannah, the plaintiffs produced in evidence the registers relating to that ship. 1. The certificate of registry de novo at Liverpool, under date of

a

cannot be

charged merely because having defectivelyconveyed his whole share in the ship 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

1812.

McIVER

against HUMBLE.

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 "Ml. 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 effects 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 Ml. Humble, the defendant. It appeared further upon the

cross