The Margaret. 1 Acton.

the present. In these various fluctuations and changes of property it must be supposed that any possible connection of the present with the first cargo, comprising the contraband articles, must be completely lost. This could not be considered the return cargo to the first.

BY THE COURT.

SIR JOHN NICHOL. In all these successive voyages and exchanges of property it is admitted by the master that after the first cargo, which was exclusively the property of the neutral claimants, a Dutch mer chant had a joint concern of one half in each subsequent cargo, and that in the present voyage the Dutch merchant owns the whole of the cargo except the moiety of these shipments of sugar, coffee, and pepper.

[335] *It certainly would be admitted this master had acted strangely throughout, and had been very liberal in admitting that which must be prejudicial to the interest of the claimant, who had lost upon the voyage the master in whom they reposed confidence; and this acquiescence in the views of the captors had been amply recompensed by their indulgence, as they had restored to him all the property he had an interest in on board, with other signal marks of favor. The property of the present cargo appearing com pletely destitute of any connection with the first, it would be a step beyond any the court had taken on any former similar occasion, were this property considered liable to condemnation. Some boundary should be established or else it would be impossible to ascertain when a vessel might be considered exempt from the consequences sof an act of delinquency, however remote.

JUDGMENT.

SIR W. GRANT. The principle, upon which this and other prize courts have generally proceeded to adjudication in cases of this nature, appears simply to be this, that if a vessel carried contraband on the outward voyage, she is liable to condemnation on the homeward voyage. It is by no means necessary that the cargo should have been purchased by the proceeds of this contraband. Hence we must pronounce against this appeal, the sentence of the court below being perfectly valid, and consistent with the acknowledged principles of general law.

SENTENCE.

Pronounced against the appeal, and affirmed the sentence of the court below condemning the property of both ship and cargo.

Property restored on further proof. Application for captor's costs refused

[ * 336 ]

the captor having neglected to bring in the proceeds in disobedience to a monition from the court below.

In this appeal from the sentence of the Vice-Admiralty Court of Jamaica, condemning the ship and cargo, an application was made to the court for the captor's expenses, under the following circum

stances.

Addams, for the captor, stated, that further proof having been permitted to be introduced in the cause: he had examined the further proofs and admitted them to be satisfactory. To prevent unnecessary trouble or delay he had proposed, on behalf of his party, to consent to the restoration of the property on payment of the captor's expenses. To this reasonable proposal the claimant had refused to assent. The captor was certainly entitled to an allowance of expenses where the claimant had recourse to further proof to substantiate his claim. As this obstinacy had been the sole cause of the parties once more presenting themselves to the court to prove what was not disputed, the claimant should, therefore, defray the captor's expenses in the present application.

Arnold, for the claim, contended the claimant was perfectly justified in refusing to take back the property by consent, when that consent was accompanied by a condition to pay a sum of money which the captors had no pretension to demand. The claimant was perfectly at liberty to come before the court, notwithstanding the offer made by the captor. Circumstances might frequently arise which would render it expedient to make further applica- [ *337 ] tion. In the present case he had to complain, that notwith

standing a monition had issued in the court below for a considerable time past to bring in the proceeds, the captor's agents had neglected to comply therewith, and had to the present hour kept them back. Part, therefore, of his duty would be to apply for an attachment against the captor's agents to compel them to perform their duty.

JUDGMENT.

The court observed, that the captor's agents having so manifestly neglected their duty, no indulgence could be granted to a party under such circumstances. The application was refused, the ship and cargo restored, and an attachment decreed against the captor's agents.

The James and William. 1 Acton.

THE JAMES AND WILLIAM, Pollard, master.

July 25, 1810.

Captor's expenses. Ship and cargo sent on to England by order of Vice-Admiralty Court for sale pursuant to 41 Geo. III. sect. 9. Expense attending the providing securities to be allowed a charge upon the property. Insurance upon the same and upon freight allowed. Commission on effecting insurance; on purchase of exchequer bills.

In this case their lordships, on the 10th February, 1808, had pronounced for the appeal of the claimant, and decreed the ship and cargo to be restored, or the value thereof paid to the claimant, upon payment of the captor's expenses in both courts, referring the accompt sales of the said ship and cargo, brought in by the claimant's proctor, to the registrar and merchants to report thereon. A report was accordingly made out, which was objected to in several

articles. These objections were again referred to the regis[*338 ] trar and merchants, who reported "that in respect to the several articles so referred to them, the same ought to be allowed as in the schedule thereunto annexed."1

The James and William. 1 Acton.

For the claimant, it was objected, in reference to the charges contained in the report, that the captors had unnecessarily incurred the expenses attendant on finding securities, amounting to 9371. 14s. at the rate of 51. per cent. upon the value of the ship and cargo, which had been sent by the order of the * Vice-Admi- [ * 339 ] ralty Court at Bermuda on to England for sale, the proceeds to be deposited in the bank to abide the decision of the Lords Commissioners of Appeal, pursuant to the act of the 41st Geo. III., section the ninth, intituled, "An act for the better regulation of his Majesty's Prize Courts in the West Indies and America, and for giving a more speedy and effectual execution to the decrees of the Lords. Commissioners of Appeal." As the claimant had not required security, it was unreasonable the expenses attending the finding securities should make a part of the report. No objection having been made to letting the ship and cargo go on to England without it, there existed no ground for the charge. And finally, the claimant did not admit. the usage of granting in such cases a commission of five per cent. for the securities, but considered it perfectly unprecedented. The present was the first case of this nature upon this act which had come before their lordships. An objection was also made to the demand of 1631. 1s. 8d. as the premium of insurance on freight and commission which had not been allowed in the registrar's report, but which was now claimed as a specific and distinct charge upon this property.

For the captor, it was argued — That the provisions of the legislature, requiring security, seemed particularly formed for the purpose of securing the interest of the claimant until final adjudication. No reasonable objection could, therefore, be made by the claimants to this charge, which was very usual, and which effectually protected his property. The insurance, likewise, on the freight was a common charge in all these cases.

* The Registrar observed― That the commission charged [ *340 ] was that usually made on giving security either in the West Indies or this country in all cases of this description.

BY THE COurt.

If, after the captor has obtained possession on finding bail, the claimant wish it to be sent on to England, he must abide the expenses legally incurred, which are in fact the result of his own request.

The James and William. 1 Acton.

The Registrar stated-That the reason freight had not been allowed in the schedule was, that the merchants had not considered freight so described, an insurable article.

BY THE COURT.

SIR W. SCOTT. Supposing the master had not been also owner, would not freight have been due upon this cargo?

SENTENCE.

The Court directed the registrar's report to be amended, by allowing therein 9377. 14s. paid the securities at Bermuda, and 1637. 1s. 8d. premium of insurance on freight from Bermuda to England, and on the said sum of 9371. 14s.