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[Dr. Croke.] THE quedion for the dccifion of the Court R . ^'■'iS*"!^ ^ ^*^^'^'°"» g'^'«" i» i>y Mr! Brenton Halhburton, the Deputy to the Trea- ZtL ""1,9''^''^ H<^n^i'«»n in which he «ates ; I hat three months have clapfcd, lince H;5m • aV'cu.'""'^^"^ ^°gS^» ^^ Agents for H s Majefty's Ship Bermuda, have made aDiftri- bution according to law, of the Prize Ships Venus and Charles, and the Petitioner has called on them to pay over the unclaimed Shares to him, to be re- mitted to the Treafurer of thefaid Hofpital. p- ^i^.^^;" ^°J"^»"g the accounts of the faid liizeVclTcls, It appears that McfTrs. Hartfliorne nr p ^ ^1' ''^ »"" ^^ '^'^'" ^" ^^^''' hands the fum of Forty-l^rve Pounds and Two Pence-bcin^ the rfiare to which one Owen Cotton, who was the Captain s Clerk of His Majefty's faid Ship, is en- t.tkd o receive of the neat proceeds of faid Prizes, i hat the fud Agents have produced to the Petjri, A^' 1 "' '^ •:?"'?"' ^°'" ''^f»'"'"S ^he fame, an Attachment i/Tued purfuant to a Law of this Pro- vince,outof His Majefty's Supreme Court, whcie- »^v the property of the Ikid Owen Cotton, a^ a-i •• That the Petitioner does not conceive the fald Attachnicnt as a voucher aiuhorifed by the Prize A« and praA'sihat they may be compelled, by the Procels of this Court, to pay the fame to the Pet tioner for the ufe of His Majelly's faid Hof- P'tal, as the Law direas." To this Petition an Anfwer. and Counter-Petiti- on has been given by Lawrence Hartfhorne and 1 homas Boggs as Agents for His Maicfty's Ship Bermuda: Sating -That the Memorialifts arc Agents for His Majeft/s faid Ship Bermuda, ref- peeing two Prize Ships, the Venus and the Charles, ^Jk rJV^ .^*"P ^-as entitled to the fum of which has been attached in the Petitioners hands by virtue of a Procefs iffued out of His Majefty's supreme Court, under i Law of this Province, at the fuit of WiUiam DufFus. " 'T'^a? upon the Petitioners fettling the Ac- counts of faid Prizes, with the Deputy to the Trea- f^r ^TS'r'^"'';^^ "°*»^«*» ^« <^^«i™s to receive lor laid Hofpital, from your Petitioners, the faid lum of Forty-Five Pounds Two Pence Three i;^arthings, as the unclaimed (hare of the faid Owen Cotton, and refufes to receive from the Petitioners the laid Attachment, as a voucher to juftify them Jii the payment of faid money to the Creditors df the laid Owen Cotton. That by a recent decifion oi laid Supreme Court, it has been determined that money can be attached in the Hands of Prize Agents, at the fuit of the Creditors of the Perfon tbit >eeii attached iceive the faid by the Prize rompelled, by fame to the ^'sfaid Hof- •unter-Petiti- rtfhorne and lajefty's Ship norialifls are >ermuda, ref- the Charles, ptain of His o the fum of rizc Veflcls oners hands is Majcfty's Province, at I the Ac- to the Trea- ts to receive rs, the faid ence Three ; faid Owen Petitioners uftify them !! red i tors df :nt deciiion determined ds of Prize he Perfon entitled to receive the fame ; and the faid William DufFus, is proceeduig againft the Petitioners, to compel them to pay him the (hare of faid Owen Cotton's Prize, in difcharge of his debt, which he alledges to be due to him from the laid Owen Cotton — The Petitioners therefore humbly pray tbit they may not be compelled to pay faid money over to Greenwich Hofpital ; and that the faid voucher may be received as fufficient to difcharge them from the demand of the Deputy Treafurer of Greenwich Hofpital." It is admitted by MciTrs. Hartfhorne and Bo?gs, that, as Agents for the (hip Bermuda, they have in their hands the fum demanded, being the (hare of certain Prizes to which Owen Cotton, Clerk to the Captain of the faid Veffel, is entitled. They do not deny that three months have elapfed fince they made diftribution, and that they are therefore liable to be called upon to pay over the unclaimed Shares to the Deputy of Greenwich Hofpital. But they claim to retain in their hands thefe Shares belonging to Owen Cotton, becaule thev have been attached under a Law of this Province ; and they have produced this attachment, as it is called, fomcwhat improperly, as a voucher for relainino- the fame, which the Deputy Treafurer refufes to receive as fuch, and prays a Monition to compel payment. The whole queftion is, therefore, re- duced to a (ingle point. It is ftated in the Anfwer, that " by a recent de- clfion of the Supreme Court of this Province, it has been determined that money may be attached in the Hands of Prize Agents, at the fuit of per- ions entitled to receive the fame," and many of the n:.^,";^"!"^";'.^"""'"^' =".">= ""vvce founded i XL'? "'" ^J^'IS'i^'" "f tliat Court : what Zttn^7 ^"," "f ''■•S''' ''^^'^ "fan aftual pay- M.ca ,„, aga,„ft the Agent, or «gai„ft the Creditor Iml^l"";-'"' * "«-^'°"=y ""<'" it. the Cour .as not at |>re(ent to inqunc. It has only to de- c mine upon the Ms ftuted in the PetiLn and Aniwer, namclv, that the money has been attached ivuhout any Judgment obtained,' or Payment made. liicren|)oi). * Neither has it to rlecidc upon the validity of the Attachment m itldf, as between the Creditor and the Agent. J hat is a qucllion which u^'cth other j^artics ; jhkI belongs to other Tribunal. The only cjueftioM here is, ho^v f^ir it is a voucher to tile accounts oF the Agent to juftify the reten- tion ot Cotton's iharc. ^ As a maaci'indeed collateral to the main point i ears that Owen Ctton bein- indebted to V,jlham Dudusinthcrumof ,r.l2 ins. k/ a^ve hjs note o[ hand tor that ibm, on the mU Septcm- l^'-r, 18(V,>, upon which a dci-huarion was filed r.Md ictvcd upon JMelfrs. Hart fiion.e .V Boo... ,,l me AccatscrOwen Cott.^t., allcd^ed tt) beVn -tb- k'-.t or ablconding debtor, according to the Law 0/ ih.iioviiicc, m 'iVi:;icv 'Icrm, fsio. It Jm not bee the Ag claim c ment n note of ditor c( been c( note, 1 The elT is dcriA The relf, is doubt b perty, d j)rovide( matter, confider There m. V words of 2dly. tioii of t Aa itfe yict and 3dly. tachmen it is a vc as againl K Th ration, oi the Prov agent, ot j r were founded ich money had t Court : what an adlual pay- on iuch an a])- ft the Creditor ^r it, the Court as only to de- Petition and hcen attached aymcnt made, t^alidity of the Creditor and I affctts other ►unals. 'J'he a voucher to y the reteu- ' main point, greater part Gliding great- it nsay not nd i ihVds of ) as a bar to iiulcbtcd to ».?. l.'/. gave th Sc-{itei7i- I vvas filed, i Bongs, fis i) bf nn rtb- o the Ldw 10. It has not been, and indeed it cannot be, contended that the Agents wouhl have been protcdlcd agaii.ft the claim of the Holpital, in ca(b of a voluntary r)av- iiient made by them to the Creditor, either bC the note of hand, or by any difcharge which the C,e- cbtor could have given. Neither could thcv have been compelled to pay the Creditor, upon this note, by the common or ordinary ilatutc l:iw. 1 he elTea of the attachment, whatever it mav be, IS derived folely from the Law of the Province. AhcProvnice, having a Legiflature within it^ ielf IS competent to make Laws which arc no doubt binding upon all pcrfons, and upon all pro- - perty (Ituatcd within the limits of its jurirdia'on • j>rovjde(l that they arc apijlicable to the fubjea matter, andjhat they are not controlled bv other confiderations. Ta'^Tv^'^ 'u''''' P*^'"^' therefore to be enquired into, lit. \\hether an attachment lies under t/ie wards of the Aa of the Provir^e. 2dly. Whether fuch can [,. .he true interpreta- ^A vV,/ ^^Z^^^^th^ P'-ovince Ad, f, nee the Aet itfelf might then be repugnant to tUe Prize /let and therefore fo far illegal, and void. 3dly. Novwithftanding the validity of the at- tachment in itfelf, on both thcfc gounds, whether Jt is a voucher to the Agent, under the Prize Aci, as agamit Greenwich Hofpital.* L 1 he Law of the Province gives this decla- ration, or attachment, againft the goods, rfecfs.ar trcdits^ of any pcrjhn abjamding or abfent out of the Province, in the hands of his attorney, J actor, Ggcnt, or trujlec, -^ * 1 Geo. in. cMi). 3. Sc c tlie end- 8 in Z'h^f .'"'""'' "I'l'l'^'io" is prize money. uerKof, "",'" "S'-": "'pedes of, J: created and la.i„„s, by the King s Proclamalion, and by various Afls of Par- Ifv the Laws of Cieat-Rrltnin, all mize be- em^i.;;:.''' '';■';': T" '^"'S- r » '«« "^ '^e an' . nucd to t but bv grant fn,m His Maicfty Grants of >„«■, hke all other Rovnl Grants are to be conlfrucd Uridly again.l tl.'e Gram e.'a d canno be extended by Sn, con,l,u«,on bc'vo d ^he plan, .mport of the expref. wor.ls. Such grantees are captors held to be in la»-, and neither ^e confir,„at.on of the grant bv Aa of Parlia- ment, or the grantmg of the further or rever/io,,. jerts have taken them out of the general rule rhele pnncples are incontrovertible, and thev' whidfrtf/^'? ?*■""'* of th; decino^'I Which a, e to be found relating to droits of Admi. by'tle' Aft/'r p'^'rS' '■" '''" P^^'^mation. and 0) tlie A«s of Parliament, has not '''"° '>"«' %W,hofe re tn«.ons they acqunc no right at all. Where '!lli!P!£iLj!l!fLi£mpl>°wi.h the conditiS their in th have L( Proc /o be If it] but V Ibch captu ter a ny ot ed, a are tl So, them recci^ anoth 49. ( on th becor be pai wich to an; fame, let for fhallf] defcrif perfon be, an the pei muft p annexe I 9 is prize money, a fpecies of pro- nalmuch as it is trillions, by the )us A6is of Par- » all prize bc- irt of the anci- l)je6t can be in- His Majefty. al Grants, are ; Grantee, and Miction bevond words. Such w, and neither Aa of Parlia- r or rcverfion- to other fub- e general rule. ibic, and they ' ihe decifions oits of Adnoi- imation, and granted prize n reflridiions, vhich confine right cannot ond their ex- s the captors ondihofc re- al]. Where c conditions, ie Francois 6, 1297. their right does notveft and the i.itereft remains .the Crown, or with thofc to whom it may have been transferred. ^ Let us look into the terras of the grant. The InZfT''- °'^".' "" '"<" product of all p,izts "f'Jortke entire ben^t of i he officers andjeamen. t t flopped here it would be an abfolute grant ; fucV\T'/f "^i°".^ "' afterwards introduced iueh as that they ftall be on board at the time of ^Tt V"i5''!"''^>'*='" "<« be entitled until af- .V n,^" *^J"^":?"°"— The Prize Aft adds ma- ny others ; for all the regulations therein contain- ed, as far as they apply to the captors themfelves, are the conditions of the grant. the^mri'',""^'* ri" T°"'^ ''g'*"> "> «he captors, the mode in which they are to demand it. and to ^^Z ■'^ri'"' " P'"""^'' °"' : and 'his forms another reft„a.on, or limitation, of the grant. By *9. Geo IH. C. 123. Sea. 13. thelaft AQ UD- on that fubjea : « All (hares of Prize duVa^idTo be rr. '";.'° A^'"^ Officers and Seamen ftaU be paid by the Agent or the Treafurerof Green- wich Hofpital to the perfon intitled thereto or to any other perfon authorized to receive the rtTrt^^Hhe^f h JV''' '°™ - '""reffc^ fhall rn,."f .K '^'""'"''' ="""«<'' «'hich order mall fpecify the name of the prize, or<.ive fuel. perfon m whofe poffeflion the prize moiiev (hall be and the name of the (hip on board orVhi'h : the perfon making the order was fervh ..-He muft procure hkewife a certificate in b^^ fo™ amiexed, containing a full defcription of his p™ 10 Ton, which muft be Hgned by the Captain, ana oue other figning Officer of the (hip in which he fhall then be ferving : If difcharged from the ler- vicc, the certificate muft be figned by different perfons there mentioned as the cafe may be, which certificate (hall be written or printed on the fame paper containing fuch order, and which order and certificate b'eing prefented together, and the faid order being paid, fuch order and ccrtificats Ihall remain with the Agent paying the fame : Provided always, that every fuch order ihall be rcvokeable at pleafure by the perfbn .making the lame-— Provided alfo, that no fuch order fhall be valid if the party (hall be then refiding within the diftancc of five miles from the place of payment." Two perfons are here pointed out for the Agent to make his payments to, \(i. the per/on intitled to the prize money ; that is, thefeaman himjelf, and to prove his identity, and that he was on board, two of the conditions, the 5yth fedion of the 45th of the King direfts that the Captain (hall fend to the Agent a lift of the perfons intitled, with their names, ages, and the delcription of their perfons. Under thefc words it cannot be contended that any man can demand payment but the very individual, fo afcertained, und lb per- fonallv delcribcd — i>. The only other perfon pointed out is the per- Jhn ivlio is authorifed by an order m the form pre- icribcd. ' , r i The cueftion then is, whether theie words of tlic Afls are cxclufive of all other modes of payment. It was admitted by the Counfcl againft the peli- llon th:'.t if the Mi had coutaiued negative word* go u no attachment would have lain. But if they arc in themlelves exclufive, they neceflarily imply a negative, and the fame inference would follow. The words of a flatutc are to be interpreted, by ths rules of law, according to their ufual and known Signification, and by the reafon and fpirit of the Ad itlelf. Now this is a disjunctive propojiti^ on, and all fuch are neceflarily exclufive, as it has been obferved by all writers upon the fubje<5ts of Grammar and Logic, not from an; .echnical re- finements, but from common ufage; Such pro- pofitions are faid not to be corredt, if there are any other cafes not comprehended under them. As in the indicative form, the fentence, it is day or night, is faid not to be true becaufe it might be twilight, which is neither the one or the other. So in the imperative form. If I order a fcrvant to go to Saekville, or to Windfor, it is no autho- rity to him to go to Annapolis. His going thither is not warranted by the order. So the words of the Aa : « All (hares fhall be paid to the perfoa intitled, OR the pcrlbn authorifcd bv the order prcfcribed," neceflarily implies that it '(hall, not be i)aidtoany other perfon, and affords no authority for any other payment. The word " air renders It equally exclufive, for \( all the fliares are di- reded to be j)aid to A. or B. none can be paid clfewhere. But the reafon of the thing fliews evidently that the words are exclufive, becaufe otherwifethc regulations would be totally ufelefs, *K they were required to be adopted umier one form of transfer, yet other modes, in which they nnghl be ncgleded, were equally valid. It has been a great ohjefl with the Legiflaturc to 12 protcft failors from fraud and impofition by rc- flriding the mode of transfer. Each fucccllive Prize A61 has gone beyond its predeceflors in multiplying forms and precautions. Under the A6t of the '26 G. 111. the directions were that " no letter of attorney or will made by any Pet- ty Officer or Sailor fhall b« good unlefs made re- vokeable, figned before, and attefted by the Cap- tain, fpecifying the name of the fliip," and other particulars there mentioned. Upon this A6\ a cafe was decided in the Court of Common Pleas, Macdonald v. Pafley, Bos. & Pul. 1. 161. An aftion was brought by Macdonald a failor againd Pafley the Prize Agent for the whole of the prize money due to him. The Agent had paid a part of it to one Grant, as indoriee of an order given by Macdonald in favour of one Abraham Jofeph upon Pafley for his prize money. On (hewing caufe againft a rule, why, on payment of what remained unpaid to Grant to fuch perfons as the Court fliould appoint, all further proceedings fliould be ftaid, it was contended for the plaintifti that the payments to Grant could not difcharge the debt, lince the order did not comply with the diredions of thf A6t, and that if it was neceflfary to fubjeft a letter of attorney to the reftri<^ions of that A6t, a fortiori it was fo with refpect to an order which was a lefs folcmn inftrument. The Court difcharg- ed the rule, and Chief Juftice Eyre faid that, there was a great deal of colour for the argument which had been ufed rel'pc6iing the nature of the autho- rity under which thefc payments had been made. Jflhe Lcgijlature tJiouglitfit to puta poxver of at- torncy under particular regulatiom-f there is great L IS reafon tofuppofe that it was meant, that the Agent could not be difcharged by any thing lefs than a poxver of attorney,^* Now in this old Ad there were no words to dircft how the money ihould be paid, nor was it couched in any negative forrn, yet it was held that the reftridlions laid upon one form of inftrument, muft, vi materia, and from the realbn of the Ad, be confidered as exclufive of every other inflrument. How much ftronger is that conclufion under the prefent Prize A6ts where exclufive words are adually employed ? Such exclufive reflridions and limitations then as to the mode in which prize money is to be paid, having been introduced into his Majefty's grant under the A£l of Parliament, the captors complying with thofe conditions have a veded in- tcreft, which has frequently been enforced in the Courts of Common Law, but if the conditions are not complied with, the grant cannot take ef- feft, nor does any right whatever vcft under it. If the failor demands his money in perfon, or by fuch an order, it vefls : if he does not he has no intcreft whatever. The right to prize, originally in the Crown, not being divefted out of it but ac- cording to the terms of the grant, dill remains in the Crown, or in the grantee of fuch refiduary intcreft. This is Greenwich Hofpital to whom the re- fiduary intereft is given by the fame A6ls of Par- liament. By fed. 87, every Agent within four months fhall remit all unclaimed balances, and (hares, and all fliares of run men to the Treafurer of Greenwich Hofpital. All (hares are unclaimed which are not claimed accordific; ':o the A61, and 14 the intereft of the Hofpital is real, and uot mere- ly, through parly, for the benefit of the indivi* dual captors. It has, firft, a beneficial polTclTion, from the intercft of the (hares which are inverted in Government fecurities, and it has the ulti- mate property if they are not legally demanded, as it has originally in run men's (hares, forming together a fund for the benefit of the Hofpital. In the cale of Home againft Lord Caml)den, 2 H. Black. 533, Lord Chief Jufticc Eyre faid, that the different I'edions wJjich give powers and impofe duties upon Agents, all rcfpe6l falcs in order to diftribution, and the iiuerejis of Green- wich Hofpital aiHing out of thofe fales. So that the Hoipital is conlidereJ as having an intereft from the besiiinino:. "ST Here then is no fuhject 7natfer for the Law of the Province to act upon. Prize money is neither the goods, etle<5ts, or credits of the feaman, urdefs he demands it in perfon, or by fuch a power of at- torney as is defcribed. Not having lb demanded it, it could not be liable to an attachment under that defer iplion, and the time having now expir- ed, without fuch legal demand, the ::>tcreft of Greenwich Hofpital becomes veftcd. But it was laid i)y Council, that the feaman might maintain an action againO: the agent, at the time the attachment ilTued, and there fore that the creditor rcprelenting his intcrefts may maintain an adion alfo. Now 1 doubt much whether the failor himiclf could have broucht an adtion for his prize money, until after he had demandcil it in l)erlbn, for his pcrfonal appearance, to identify him with the pet Ion delcribcd in the prize lirt, is ■.if .t 15 not mcre- :he indlvi« poflelTion, e inveftcd the ulti- Icmaiided, 1, forming iofpital. Gambden, Eyre laid, owers and ;6l Tales in }f Green- So that ,n iiitereft: he Law of IS neither , uiilels he iver of at- Jemand^d ent under ow expir- :>tcre(l of le leaman ;nt, at the e that the niaititain lethcr the Oil for hii idei! it in o identify ze hrt, is :' ', ncceflary under the Aa ; and, as the ruJes of good pleading prove the law, a demand by the c aimant and a refufal by tlic Agent is alwav* pleaded as a foundation for uic a^ioti in fuits in the Common Law Courts againll the Prize Agent, as appears in the cafe of Wemyfs v Lin- zee, m Douglas 310. If the party himfelf could not have brought^an aftion (he argument fails as to he creditor. H.s appearance in perfon could not have latisfied the intention of the Aa If the party had been here he certainly could mthnvc transferred or assigned his right to prize money to the creditor in fatisfaftion^f his debt unlefs according to the regulations of the Aa. Nav more, ,f the party had been here himfclf at the time the attachment iffued he could not have affigned it at all, for no order whatever dven bv him here would then have been valid to authorifc the receipt of prize money, by the exprefs words of the Prize Aa. Does the Aa if the Pro- vince then make a transfer of rights to the credit toi which the party himfelf coufd not have done ? 1 he attachment is befidcs an order to the Agent to detain the money, and not pay it over to Greenwich Hofpital. Rut the pa ty himfclf could make no fuch prder. That privilege is con fined to warrant officers.* * Further as to this fuppofed reprcfenlation ; of he two modes of payment, the fir ft is perlonu to the party, 1 do not lee how this can be tran .read to his very point, namely to afccrtain I^owjthe^W be reprefbntcd. One onlv ■ * '^■' ^^""lll. C^Vi. Sect. .:;, ~~ 16 I f 1 mode of conftituting a reprefentation is pointed out, by letter of attorney in the form prclbribed. If thefe rcftri6tions are exclufive they muft an- nihilate every other kind of reprefentation, (ex- cept that of executors and adminiftrttors which is admitted and put under regulations,) whether that reprefentation ariles by Common Law, by Statute, or by A61 of the Province. This property likewifc is proteflcd upon another ground.— It was admitted by the Counlel for the Agents, that money could not be attached if under the cuftody of the law, and whilft a fuit is depending in the King*8 Court. Several cafes were cited to this cfFc6t. In particular the cafe of Coppel againft Smith, and Grant againft Howding, 4^ T. R. 5V2. Money in one cafe attached, and, in the other, paid upon a judgment upon an at- tachment, were adjudged to be paid again, be- caufc the money had been diredled to be paid by the Court of King's Bench and therefore was a judicial adt. Yet it had not been attached in one cafe until after the mafter*s allocatur, nor in the other until the day arrived for payment, fo that the intereft was completely vefted, and nothing remained for the Court to decide. Prize money is under the cuflody of the King'* Court of Admiralty until it is adually demanded or paid to the parties. Until that moment the prize caufe is ftill depending. This is evident beciufe until that time the Court is open to any application from perfons intereftcd, and can make Older thereupon, without inftituting a frc(h iuit, which muft neceffarily be done if the original caufe was out of Court. Until pavmcnt the pointed libribed. luft an- on, (ex- i which whether -aw, by J another :1 for the if under spending B cited to Coppel /ding, 4, led, and, 1 an at- tain, be- paid by e was a ;d in one or in the t, fo that 1 nothing le King'i lemanded ment the !) evident len to any can make frcfh iuit, ; original Tjcnt the 17 judgment given is not effeaed and fatisficd. Till nat time all the parties are under the controul of tul \T^'' '^^">' ^^gu^^tions arc there in me /\ct relating to the condud of the Agents r///fr Jinal judgment, and to the time of a(5iual pavmcnt, ■ all which it is the duty of the Court of Admiralty, by the dire^ions of the Prize Ad to inforce? Here after final judgment the agent is to regiftcr his Power of Attorney, to exhibit his Accounts of Sale?, in fome cafes to bring the proceeds into the regiftry, or to invert them un.ler the direflions of the Court. By the orders of this Court he is to make diftribution, here he is to make up and veri- fy his final accounts as the Court (hall require, and under the direction of the Court to remit all unclaimed fliares to Greenwich Hofpital,--If property fo fituated is not under the cuftody of the King's Court of Admiralty until adtual pavment I know not what pro[)erty can be confidereJ as in that fituation, nor do I know any cafe in which the Courts of Law have been held even to have concurrent jurifdidion until the property is become abfolute and vefted by the Prize Aa, either by a demand in perfon, or by an acknowledged Power of Attorney, neither of which have taken place in the prefent cafe. 2. As the Sailor has no attachable goods or ef- feds, fo I think there is confiderable flrength in another ground which was fo fully argued by his Majcfty's Advocate, namely, that a Prize Agent IS not either an Attorney, Faaor, Agent, or Trus- tee, as intended and defcribed by the Aft. The more general woids ♦* in tvhofe hands or pojfessim iliefame may be found" in the firft claufe, bein? C 18 confined to fuch goods or cfFc6ts as arc expofed to view, or can be come at. They are indeed called Agents, and are named by the parties, but they are certainly very different from the perfons ufualiy underAood under that de- nomination. They are in reality appointed by the Prize A6t for certain foecial purpofcs. They are ra- ther officers of the Court than agents of the parties. To the Court of Admiralty they give fecurity,and that not a fecurity in each particular cafe, but a general fecurity for the due performance of their general duties. They are under the controul and dire6lion of the Court as of its proper authority, independent of any adt, or motion of the Captors. The parties have no controul over the property in their hands, they cannot take it out, or direfl the cifpofal of it, but according to the reftridions of the A61. Nor can they give any authority to him to retain it in his hands, after the expiration of the time limited. And they are not Agents for the Captors only, but for all other perfons intereftcd — thcv are Agents as well for Greenwich Hofpital as for the Sailors. 3. 1 think there is fome weight likcwife in the ob- fervation made by the Solicitor General, that a fail- or, coming here, for a fliort time, in His Majcfty's Service, can fcarcely be the pcrfon intended by the Aa, under the delcription oi an abfenl or abfcmd- ing debior — To be abfent, or to abfcond, implies a ])revious refidence, and how can a perfon be con- iidered as a reiident who accidentally vifits this har- bour in one" of His Majefty's Ships, and has nothing like a domicil within the Province? Jn the cafes of Sill v. Bos wick, and Hunter v. 19 Potts, which were cited at the Bar, Provincial Laws were held not to have a complete operation for the benefit of perfons who went into a Colony merely to take advantage of thofe Laws, how then fhall fuch a temporary and involuntary vifit give them efFed to any perfon's detriment ? 2. I have hitherto confined my obfervations to the words of the Province Aft itfelf, and have fhewn that it docs not apply to Prize-Money, be- caufe it is not the property there dcfcribed, and bccaufc neither the Prize-Agent, or the Sailor him- felf, are the perfoas againft whom it is di reded. I proceed now to another point, that fuch can- not be the true interpretation of the Province A&, bccaufc, if it were, the A6t itfelf would be repug- nant to the Prize A6ts, fincc enafted, and there- fore fofar illegal and void. It is an admitted principleof Law, and was ftat- ed as fuch by Lord Mansfield,* that the Colonies take all the Common and Statute Law of Eng- land, which is applicable to their ftatc and condi- tion. The Regulations in the Prize Ad extend cxprcfsly to the Colonics, and lincc all the right which Captors have in Prize is created by them, in conjundion with the Proclamation, thefe title deeds muft be taken with all their limitations. Either the whole is applicable, or no part. It cannot be faid we will take the Proclamation and the Statutes as they give prize to the Captors, but we will rejed the conditions under which it is given. By the 7 and 8 Wm. III. C. 22, Sed. 9, "All Laws, in any of the Plantations, which are repugnant to any Laws to be made in Great- Britain, fo far as fuch * Lindo*. RoJaey—Douglu 80 Law (liall relate to, and mention, the faid Plantati- ons, are illegal, null and void, to all intents and purpofes." If then the Province Law is reniiT. nanttothc reftriaions impofcd by the British Ad It is fo far Ulegal and void. Conildcring it in ano- rhcr point of view, and giving it everv pcflihlc va- lidity, full the Britifh Aa muft be allowed to be of equal authority, and then the Province Aa muft be taken to be fubftantially repealed, fo far as it is repugnant to the Britifh Afl, which is of a l.ter date, upon the univerlal' maxim, quod le^rcs pol'- tcnores priorcs contrarias ubrogant. ^ If the Province A^ is to be conftrurd as is con. tended, and an attachment lies in this caie, it is evidently repugnant to the Prize Aa. That A^ dircas the money to be paid to the party in perfon ortoan Attorney, ma certain mode a; ported ! aiid if not fo demanded and paid, that it fliall ^o to Greenwich Hofpital ; the Aa of the Province would direa, that although it had not been ih de- manded, yet It fhould not go to Greenwich Ilof- pital, but to any creditor who chofe to attach it and that noble charity would be deprived of a refi' duary intcreft vefted in it by the fame Statutes un- der which the Captors therafelves derive their nght of property. The Prize Aa limits the right ot transfer to one form of an order ; the Province Aa would extend it to promiffory notes, to com- mon bills of exchange, nay to every inftrument and mode by which credit may be given, and debts con- traded If furh is the true conftruaion of the Pro- vincial Aa, a Statute may be good {o fa/ as it gives an intcreft but void fo far as it reftrias it ; a G>ant made by the Crown in 1805, can be extended be- 21 Plantati- ents and is rcpiig- itifh Ad, it in aiio- fiblc va- i to be of Va muft far as it of a I aer egcs pof- is is con- :ale, it is h-it Aa n per foil, pointed ; lall go to Province en ib de- ich liuf. attach it, of a refi- itutes un- ivc their the right Province to com- ment and ehts con- the Pro- is it gives a Grant nded be- yond Its exprels terms, and plain conditions, by a Provincial Aa,pafred in 1761, before thep.operty itfelf was created ; and an Ad of Parliament, ex- tending to the Province, pafTed in the 45th vearof the King, can be virtually repealed in ibmc of its moft material claufcs, by an Aa of the Province pafled in the firft year of the fame reign. * 1'his repugi.aucy is not only to the exprefs words of the Aa, but ftill more againft its fpiritand in- tention. 1 hefe reftriaions were introduced partly to difcourage defertion, and partly for the purpolc cf preventing failors from being defrauded of their prize-money, by their executing powers of attor- ney, and other inftrumenis, improvidently, and * thereby transferring not onlv their prefent but their future intereft—With refped to the firft, the Prize Lift indeed afcertained, they were not run men at the time of delivery, but as their Ihare was cquallv forfeitec' by a fubfcquent defertion, the order wa's required to be figned by the Captain, or muft con- tain a certificate of the faiior's difcharge. If an attachment can be lued out upon any inftrument, executed without any of thefe precautions, or for any debt, there is no fecurity than run men may not receive their (hares, to the encouragement of defertion, and the injury of the Navaf Service. Frauds were often jiraaifcd by impoftors who perfonated failors, and received their prize-monev. This was guarded againft by compelling them to appear in perfon to be checked with the Prize Lift or to be certified by their Captain. The fame precautions were a proteaion againft forgeries, and frauds in obtaining orders, and the villanies prac- tiled upon unthinking failors, in cheating them by 22 antic"njdlioi* '>f their future prize noney, whofc value was unknown, was in ibmc mcafurc pre- vented by the neccflity of fpecifying the prizes, and other circumftances. Such was the feries of wcll-confidcred regulati- ons, adopted gradually, as experience fuggefted their neceflity, for theic wife and benevolent pur- poles. But if an attachment can be fucd out by any creditor, real or pretended, upon any inftrumcnt, or fccurity, or for any debt whatever, the whole fa- bric falls to the ground. It is faid that the Supreme Court will be extremely cautious, and willfofhape its proceedings, as to guard againft fraud. Be it ib, it is the duty ofevery Courlof Juftice. But it has not means equal to thofe prefcribedby the A6t. All its precautions arc inefFc<5tuul, in comparilbn to thofe of the Prize A^. Under the Prize Aft fuch are the regulations that every point muft be proved, and in a mode which icarcely leaves a polfibility of fraud, to the fatisfadion of the party who has to pay the money. Unlefs thofe regulati- ons are purfued, the Agent is not difcharged, and it is therefore made his intereft to fee that they arc pbfcrvcd bona fide. But if prize-money can be attached in his hands, and liich proccis, or judg- ment upon it, is a legal difcharge, he has no intereft in refilling it. He may indeed be compelled to appear, but' cold and lifelcfs will be the defence, where vidoi o«- defeat are equally indifferent. It is laid the \:v.\ a. v coaie in under the Province Law, and fet afi k t!'.: judcjment within three vears, lis 1 "^ ^ "'' but how IS a pc;ir iilor, whc may never revilit thefe Ihoi es, to avail himlelf of an expenfivc pro- ceeding at Law to recover a poor pittance of a few ', whofc I re prc- ; prizes, rcgulati- iiggcftcd uit pur- It by any Tument, I' hole fa- >upremc fo fliape . Be it But it the Ad. 1 pari (on ize Aft iriuft be leaves a e party egulati- cd, and they arc can be r judg- intereft :I]ed to lefence, snt. It rovince e years, revifit ve pro- if a few ■ 23 pounds, and this right of a re-hearing decs not ex- tend to Greenwich Mofpital, fince it is confined by the Aft to the ilebtor hinnfelf. Since then the proceedings in the Provincial Courts cannot afford an equal iccurity againftthe mifchicfs intended to be remcclie^l, the procefs of attachment would (et afideall the excellent regulations of the Prize Afl;, without fubftituting an equivalent in their place, and would leave His Majefty*s Service, the Sailor, the Agent, and the Hofpital, naked, and cxpofed to every fpccies of fraud and impofition. But, af- ter all, the queflion is not whether the precautions ufedby the Provincial Courts are equally efficaci- ous with thofc of the Prize Aft, but whether a Law of the Province, made long before, is to be fo interpreted as to make it abolifh thofe regulati- o!is, and to leave it to the Courts of Law to fub- ftitute others in their place. If an attachment lies, it overturns all thofc pro- vifions which are fo advantageous to the Teaman. On the other hand it is only an additional remedy to the creditor. It is an eflablifhed maxim, quod lex citiifUolererevuU privatum damnum, quatn pub- licum I >i Urn, It is better that a creditor, who had other means of recovering his ^ebt, having neg- iefted to ufe thofc means, (hould be deprived of this further remedy, (accumulated remedies for the be- nefit of thofe who have neglefted to ufe due legal diligence, not being favored in Law,) than that a door fhould be open to fraud and impofition, that a ciafsofmen, to whole bravery and exertions the Britifh Empire, and the Colonies in pirticular, owe their exigence and independence, fhould be liable to be robbed of the jufl reward of their me- 9A J/ V ntorioiis fcrvices, to the great injury of the Public ; f Kl that the Brnifli Lcgiflature fhould be defeated 1" an importa.it ohjca, which has occupied fo ^^vtj '^^ ^^^^ ''^"^ attention. With every deference to the very refneaablc Oentlemen "•' "" * . , V I ^ '^''oprcndc m the Provincial Courts, after the moft diligent examination, and the ma- turi-ft dehberatjon which I have been able to apply to this fubjca, for the reafons which I have dated 1 cannot be convinced that prize-money can le-' gaily be attached, under the A^ of the Province, in the hands of Prize Agents, andthat a decifion to the contrary can be maintained in Law. Diffident as I niurt naturally f,d in thefefentimcnts, from their Jiot coinciding with, what I undeiftand to be. the oimnon of thoferelpeaable Gentlemen, I cannot l>ut think that they receive fome fupport from an ai;gument which is not unfrequent in the mouths otlomeofthe moft-learned Sages of the Law a- gainft the legality of any anions, or other legal pro- cccain^s^thatt/iev are not founded in preudehU I he L4W of the Province has now been in force half a century; many and frequent have been the complamtsofloiresby the debts offailors; prize money loan immenfe amount has been from time here depofited,and yet neither the keencft of credi- tors, or the ingenuity of the Gentlemen of the Pro. fcffion, have, till very lately, difcovered this mode ot proceeding. As a new and unpreredented practice is at leaft fairly open to iome difcufli- on= 3. But however valid the attachment may be as between the parties, it does not follow that it IS binding u])on Greenwich Hofjiital. It is res e Public ; ■ defeated cupied To /nedlabic 1 Courts, the ma- te apply ^e ftatcd, '■ can le- vince, in on to the fident as L>m their be, the cannot From an rnouths .aw, a- ^al pro- Pi cdcfi/4 n force ;en the prize m time ■ credi- le Pro- ; mode dented ifcufli- ay be that it is rts ' ' 25 inter alius ada quae aliis nocere non debet. The Ho "pital is not a party in, or privy to, that fuit. It cannot intervene in it, and it is excluded from a re-heanng by the Province A6t, which limits that privilege to the abfcnt or abfcondnig debtor. If an attachment, taken out by a Creditor againft the Agent, would be a bar to the claim of the Hof- pital. It would be deprived of its fight* without an opportunity of defence. If an attachment, not followed up by a judgment, would be a bar. Agents, by fraudulently procuring procefsto be fued out, by fidhtious or fmall creditors, may retain the money in their own hands ; as in this cafe, where the demand of the Creditor is much lefs than the money in the hands of the Agent. 2. By the words of the Province Aa,° this procefs, and judgment of Law upon it, are declared to be a full acquittal and difcharge of the Agent from ail demands, by his principal, his executori, or adminiftracors ; but it is not declared to be a difcharge of the Agent againft the demands of any other perfons, and of courfe not againft the claims of Greenwich Hofpital. 3. The extenfive view which I have thought it ncccfTarytotake, of the validity andeffeasof the attachment, and which has led me into an ex- amination of the nature of prize property, and of His Majefty*s Proclamation, and the Prize Acls, and the inferences which 1 have deduced frorai them, ftrongly prove that the direaion«? of the Aa to Agents, lelpcdling their payments and ac- counts, muft be litcrallv adhered to. If thofe di- D P.6 «.o,,rt tthcli can t» ihtm :,(i,|r, or dfviate fr!^ .h...^a„a^ch„,c.,t as a voucher, if u. not allov'd That lux cduaioii iha]] he - li^ 'y^'^^n^r cnd<::tcd, in the ravmrn.c f ^/^ /*"«^ved, on any avcmiin, lawfu. A.for„e;:aXrducrd ^r^Cc • *'^ voucher from ,hc party direacd bv the Ifl °"'^ order uuh: f^ 1^' x:s" 'y'^";.'"^'' '^ - -' are author„b V "* "I"' '"'"''' 'a.isfaaor, nies, as r ll •r„,??:."f:' "l' "«=.'' 'awful A.tor' ifcd by th tion can be allowed'oiithat Uvea b)- the Aa, they ai e excluded v:u)^z-¥^^^-^^^^^^^::z account. So 'c the wo:ds of the A&, and /b clctr™', uc- pcra- the ir 17 y ii) this »tc from ^5t admit allowed 45 Geo. cnuililcd, arcmayty 1 fhaes Gecn- Jms not tiou, to !, unlcfs or their me." rs from vcmuft he only <^, ex- y mode ti, is an vouch- Since )n, and ne un- v'ouch- L\(i of id ac- fai^lorjr Attor- iudcd Icduc- ij>cra- i their meaning, that nothing is left to the difcretion of the Court ; in the allowance of thefe Accounts it has little mo-e than a minifterial power. 1 decree a Monition againft Meflrs. Hartfliornc and Boggs, as Agents for His Majcfty's Ship Bermuda, to j)i:y the fum of Forty-Five Pounds and Two- Pence Three Fnrthings, being Owen Cotton's Share of certain Prizes, to the Petitioner, as Deputjf to the Treafurer of Greenwich Holpitai, as prated by ttiC laid Deputy-Treafurer. l^aMMHMi ■««<•<««< mn^ «»»«*«»C| An ACT to enable Creditors to receive their juft Debts, out of the Effects of their Abfcnt or Ab- fconding Debtors, [ift Geo. III. c. 8, § i, a, 7, 8.] BE it tnaSeJ, hy the Honorable tht Commander in Chief , the C0un- ciL and/lffmhly. TJiat u (hall and may be lawfuJfor any pcrfoii entitled to any adiun lor any debts, dues or demands whatfoefer, a- gaind any perfon abfconding or abfent out of this Prorlnce, to caufe the goods and e(Ute of fuch abfconrting or abfent pctfon to beat* tached, in whofe hands or iioffcflion foever the fame are, or may be found : And the attaching of any part thereof ftiall fecure and mike the whole, that is in luch pcrfon's hands, liable in the law to refpond tl^ejuil^meni to be recovered upon fuch proccfs, if fu much there be, and no furthei, and flit'i be fubj'.'i\ed to be taken in execution for fit i faAion thereof, or fo tar as the value thereof will expend, and the pitfon in whofe hands they arc fliall erpofe then» accordingly. II. /Ind be it further ^naUed, That were no goods or efftfls of fuch ahfeot or abfconding perfon in tht hands of his attorney, faftor, agent, or trudce, (hi! be txpofed to view, or can bfcomeat fo as to be at- tached, it (hill and may be lawful to and for any perfon entitled to any fuch adlion as aforefaid, to file a declaration againft luch abfent or abfconding perlon, in the Clerk's office of the Infeiior Court of Common Picas in the fame county where fuch faftor, agent or trullee lives, therein particularly fetting forth his debt and damage, how and for what caufc it arifes ; and to caufe the attorney, faftor, agent or truftee, of fuch abfent or abfconding petfon, to be ferved w th a fum. mons out of the office, annexed to the faid declaration, fourteen d^yi before the fitting of the Court, for hit appearance at fuch Court } which 28 . further fummo„Une^!h!^''""»/:?:*''•^^"^^^^ ru^™,on,w.th anu«td JofoVtt '" which c.fe a l.ke ardat ttt i!T^ h»'^c*n opportunity to notify hi, principaTthereof come i' trU " ;„d f? • ? """""""? »he caufe fh.ll percmptoH J hands of fuchattornifrL''^^^^^^^^ •^ abfcond.ng perfon. i„ ,he hands ptthe.il of hi; S?8"*°'".':"ft«^^ *"« in M, tiao aforef.id ?o the lafue of r^K • T^ '^' ^^'"'"°"» *"'' ^cclara- ftallbeliaWeaodtbiefledto Jl,r^*^^^^ ^'^^" n,uch there b.) meat, for.or rowards ll^sfvii. Lf "°." f ""'*^ "P"" ^"«'' 'mI the fummoa. a, afor fa'd Zfl h^ ' k^^ "■"« «<" ^^^''"8 hands to anfwer X fame 1 d '/^^^^^ ^"? '^^""'^ '" "'^ '»-.'» »>'• coorerted. ' *°** ""^y "" *»« otherwife d.fpofed of or ofVy-Jlit ''JZ6i;r':i JV' ''.^ '''''' '^^^^ - -edit., andjuVntoflawrcm^^^^^^ « *forcfaid by proccfi or tru(»ee..by any of ii, c°di ors fl^.. f .^' *""'"''>'• ^*'^°''' »8««« charge f«ch itOr^.yjtC 1 'or ,1^^ I"''"" *"*^ ^"•' '^" ^'f* ftra.ors, of, from /nd n-ainft f lUrt;^ ^'r * "«"'«". or admini- and demand, whatf^vTroV'flf? fu... d-m.g.,, p.y^en,,. brought by his princll h?,Li; • *='^™'"5"?^d' ^ad. cuied.or the fame ; and ifany IWmev f^L ' °'" "^'"'"'«"'°^«. of a«d for troubled, or fucd by h s ori J^^f^ f * «'"\°' '™^"' '^«" ^« "-'^ft'd. fiance of this Afl hcm^v „W u' "^ '•'''"« ^^ *''"' '^«"« •'« Pur. • ia evidence. * ™'^ P''*'' "^'= S''""*' ''f^^. and give this A& abfynVJ;.^SngS:?'f^^7i^^ .V./--M.r ..^.,. That ,n, . as .forefaid. ftall be en tied ?n ^'"- J"''^"''"' "'*" "^^ ^«<=°'«'«d «ltlHo three years after fai •;*•''"'■'"« °* ^"'^'^ ""f"' »» any time a^ioo, before^anTexecurion n Ar"' ' 'r"l ^"'^ P'^'-^^" '"''"='» ruifidentf.cu.itywthcr"-li'"'' f" ^'' ^"^^'^ P^gr^c^t, {h»U gift ali fud, ,„ ,„i, ^'° '.! jJ" f '" ,°^">."= Court, for the re-paymcnl of 'hcfaidjuJ3.:atl 'b Vv^ldVn ^^^''."^^-'-.•" -ft rcvcrlcd on fuch re hearing as aforefaid,